author: WESTHUES, Judge.

text:
    STATE of Missouri, Respondent, v. W. A. BROOKSHIRE, Appellant.
    No. 49152.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied June 4, 1963.

      W. A. Brookshire, pro se.
    Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
   WESTHUES, Judge.

In June, 1961, the defendant W. A. Brookshire was tried in the Circuit Court of Cooper County, Missouri, on a charge of murder in the first degree. A jury fouhd him guilty of murder in the second degreé and assessed his punishment at ten years' imprisonment in the State Penitentiary. A motion for new trial was filed and overruled. Thereafter, the court entered a judgment and sentenced the defendant in accordance with the verdict. Defendant appealed from the judgment to this court.

The information filed in the Circuit Court of Boone County, Missouri, alleged that Brookshire did on the 9th day of November, 1960, kill one Roderick J. Neiss .by shooting Neiss with a .32 caliber Colt automatic pistol. On application of the •defendant, a change of venue was granted. The court transferred the case to Cooper County, Missouri.

In the trial of the case, the defendant was represented by attorney Richard K. Phelps of Kansas City, Missouri, a member of the Missouri Bar. The defendant, a lawyer, also took an active part in his own defense. Mr. Phelps represented Brook-shire throughout the trial and argued the motion for a new trial. The defendant also made an argument on the motion for new trial and thereafter represented himself and personally briefed and argued the case in this court.

The defendant, in one of the points briefed, stated that the evidence “established beyond any honest doubt that the killing of deceased was justifiable homicide.” We shall state the facts as shown by the record with that contention in mind.

Defendant, on the day of the homicide, lived on a farm in Boone County, Missouri, about 11 miles south of Columbia, Missouri. Two farm hands, Roderick J. Neiss and Richard Polly, occupied two rooms adjoining the house at the rear. No other persons lived in the house. Defendant usually prepared the meals. The duties of the farm hands included taking care of a large herd of cattle which defendant owned. On the evening of November 9, 1960, at about 8:30 o’clock, the sheriff of Boone County received a telephone call from the defendant Brookshire. He informed the sheriff that he had shot a man but was not sure the man was dead. The sheriff was asked to come and bring an ambulance. The sheriff testified that when he arrived at the home, defendant was waiting on the outside. Defendant told the sheriff that he was afraid to go into the house; that he did not think the man was dead. The sheriff, his two deputies, and Brookshire went into the house. They found the dead body of Neiss lying on his back at the bottom of a stairs leading to the second floor of the house.

Sheriff Powell testified that Brookshire described the occurrence in detail as follows: About 6:00 p. m., Brookshire was preparing supper in the kitchen when Neiss, after doing some chores, came in and asked defendant to get some wood for the stove in Neiss’ room. Brookshire told Neiss to get his own wood. This angered Neiss and he began quarreling with defendant about not having any wood. All three men, Brookshire, Neiss, and Polly, ate supper together at the kitchen table and Neiss continued to argue. After supper, Brook-shire told Neiss to go to his room. Brook-shire then went upstairs and read awhile. Neiss, during this time, stated a number of times, “I am a Sioux Indian and you had better quit fooling with me.” Further, Neiss had claimed that he had cut a number of people with a knife. The sheriff testified that defendant’s account was that after being upstairs awhile, Brookshire came back downstairs and saw Neiss was still in the kitchen; that Brookshire said he again asked Neiss to go to his room but that Neiss again threatened defendant and followed him, Brookshire, upstairs and then went back down the stairs. Brookshire then went to his bedroom, got his gun, and went back and saw Neiss still in the kitchen. The sheriff stated that Brookshire told him that when he neared the kitchen, “They started arguing. He said, ‘Better not fool with me. I am a Sioux Indian.’ And this time he took after him and he overtaken him, or was gaining ground on him. He took back up the steps and he got about eight steps up. Neiss was on about the fourth Step, and he was gaining on him, and he just whirled and shot him. Just whirled around and shot him.”

The sheriff testified that Brookshire reenacted his version of what occurred on the steps when the fatal shot was fired as follows:

“Q Did the defendant say whether or not Neiss was still coming towards him when he fired?
“A He did.
“Q What did he say?
“A We reenacted this scene and —
“Q By we, who do you mean?
“A He and I. Brookshire and myself.
“Q By reenact, what do you mean? He went through the motions ?
“A Went through the motions.
“Q In the house?
“A In the house. I went to the head of the table, where he said Neiss was standing, and he stood in the hallway, where he said he was standing when they took up the stairway the last time, when he shot him. And he had me, with one hand up and the other one on the hip pocket, and he said, ‘He was in that position. But you want to look mean because he looked mean. He was vicious coming towards me.’
“Q Did the defendant ever say whether or not Neiss would have come on into him if he hadn’t fired?
“A He did.
“Q What did he say?
“A He said that while they were talking at the — the last time he started, when he took after him, the last time he taken after him, that he says, ‘I cut one man’s guts out and I will cut another one.’
That he kept coming towards him.”

The sheriff testified further that defendant told him that he had left things just as they were when Neiss fell as a result of the shot. When the deceased’s body was examined, he had on two pairs of trousers. In a pocket of the inner pair, a closed Barlow knife was found.

Brookshire, in his testimony, stated that Neiss during the evening threatened him a number of times saying, “He was going to cut my guts out and I assume he was going to use a knife.” Brookshire testified he did not see Neiss have a knife just prior to the shooting but that a few days before the shooting deceased borrowed a whetrock from him to sharpen a knife; that he saw the knife which was a large black-handled knife, not the one found on the body of Neiss. Brookshire testified that he found this large knife open lying next to the body of Neiss after the shooting; that he picked it up and placed it in a table drawer in the kitchen. It was in evidence, and Brook-shire admitted, that he did not mention the presence of the knife to anyone until after the coroner’s inquest at which Brookshire testified. Brookshire’s testimony was that after the coroner’s inquest, he went to his home and found the knife under a kitchen table.

As to what happened immediately before the shooting, Brookshire testified that after Neiss had followed him up the stairs, “I kept begging him to go down and finally he went down. I thought he would leave the house. I went about halfway down the stairs and I could see he was standing in the kitchen. I went back to my bedroom and in the night stand drawer, at the head of my bed, I had a .32 automatic Colt revolver, the one that was introduced in evidence. I got that and went down and saw that he was still down there. I went through the hall and went almost to the kitchen door. As I got within sight of him, he turned, he says, T am going to finish you off,’ and started after me. I started back. I had the gun in my hand. I started back and he was gaining on me. I started up the stairs. I told him to stop. He didn’t stop. I got about halfway up the stairs, seventh or eighth step. He had—

“Q Do you mean the seventh or eighth step from the bottom?
“A Seven or eight steps from the bottom. There are 19 steps on the stairway. I don’t know exactly, but I was about the seventh or eighth step. He had come up three to four steps and I turned and fired. I didn’t know that I had hit him. He began stepping back and fell down to the foot of the stairs, fell on his back, with his head almost to the wall, almost to the door.”

There was a wound at about the middle of the forehead of the deceased from which some blood had trickled down to the hair line of the head. This wound was obvious and the persons present shortly after the shooting evidently were of the opinion that Neiss had been shot in the forehead. Brookshire had contended at the preliminary hearing that deceased was shot in the forehead and he claimed that a photograph showed the wound. When asked about that at the trial, he gave the following testimony:

“Q Was this picture offered at the preliminary hearing?
“A I am sure it was because I am sure in my argument that I argued that point. I can tell you why that injury was to his forehead. I was convinced, Polly was convinced, the sheriff was convinced. It was in the newspapers the next day that he was shot in the forehead. I saw the coroner. I stood there over him. He took his fingers and worked the bones in his forehead and some blood came out. That is the first time I saw blood there. And there is a picture there that shows where that blood had oozed out or streamed out.”

Exhibit 1, introduced in evidence, was a photograph in which the wound on the forehead was visible. Dr. Richard E. Johnson, a pathologist and the coroner of Boone County, testified that he arrived at the Brookshire home at about ten o’clock on the night of the shooting; that he examined the body of the deceased. As to the wound in the forehead, he gave the following evidence :

“Q And what if any wounds or abrasions or traumatic injuries of any kind did you find on the body of the deceased at that time?
“A At that time I found just two points of injury. The most obvious one was the, a large swelling in this region, just above the ridge of the nose, rather close to the midline of the forehead.
“Q By midline, do you mean the line running straight down?
“A Yes. Vertical.
“Q Was this swelling at this place, was this bleeding?
“A Yes. A small trickle of blood had run from abraded skin over the swelling across the forehead to the hair line.
“Q Were you aware at that time that this was merely an abrasion or a swelling of some sort?
“A After completing my examination, yes, sir, I felt.
⅜ ⅜ ⅜ ⅜ ⅜
“Q Was this swelling, did you know at the time that it was only a swelling?
“A Yes. I felt so. By palpation I could move the swollen area over the underlying skull. I felt that it represented merely a hemorrhage into the tissues of the face itself without involvement of the underlying skull.”

Dr. Johnson testified that he performed an autopsy and found that the skull at the forehead had not been punctured. As to other wounds on the body, discovered on the night of the shooting, the doctor testified:

“Q I see. Did you determine any other injuries to the head at that time?
“A. Yes, sir. There was an obvious wound in the posterior region of the scalp, on the right and just below the vertex, to the top of the skull, back a little bit to the right of th/; midline.
That appeared to be a penetrating injury.
“Q And was there blood around this injury?
“A Yes. There had been appreciable bleeding from that wound. It spread out over into the hair, the mat of the hair and to newspapers on which he was lying.”

Further testimony of the doctor was as follows:

“Q How long were you there at the scene with the body before they removed it ?
“A Perhaps in the vicinity of three hours.
“Q During your time there at the scene, did you ever find a weapon of any kind around the body of the deceased?
“A. No, sir.”

Dr. Johnson, on being asked about his findings at the time of the autopsy, gave the following testimony:

"Q And what other injuries did you find to the head?
“A Well, at the time of the autopsy—
“Q. Yes.
“A I confirmed the fact that the injury to the tissues of the forehead did not involve the underlying skull. There was no injury to that at all. It was intact. The wound in the right occipital region was actually a penetrating wound of the skull, made by a missile. And the missile was found within the cavity of the skull. I knew some of these facts from the preliminary X-rays.
“Q Were you able to determine from the' X-rays that the bullet was in the skull ?
“A Yes, sir. It is readily visible in the X-rays.
“Q What else is visible in the X-rays as far as that wound is concerned ? Is the course of the missile ascertained from the X-ray? The direction it went?
“A No. The one limit of the course, one defining limit can he determined from the point of entrance—
“MR. PHELPS: We can’t hear the witness here. We cannot hear the wit-ess.
“THE COURT: Doctor, will you speak louder, please?
“THE WITNESS: The one possible course of the missile can he determined from the point of contact of the missile with the skull which can be determined' and its final position, aligned between those two points indicate a possible path that the missile actually took.
“Q You have referred to this area medically speaking. How would you describe it in layman’s terms, as the location of this wound?
“A Well, it is on the back, the back aspect of the skull, very close to the center line, and — well, that is about it.
“Q Very close to the center, but on the back ?
“A On the back, over the peak, beyond the peak
“Q Which direction did this bullet range? Which way did it go from the wound of entrance? In other words, what is the relation of the bullet and the wound of entrance as far as direction is concerned?
“A The course, placing the individual in a standing position, upright standing position, the course is from the right. It went, of course, downward to the left and angled a little bit forward.
“Q Down to the left and forward.
“A And forward. The line drawn from the point of entrance to the final position of the missile.
“Q What was the cause of the death of Roderick Neiss?
“A. Hemorrhage into the brain tissues as the result of this missile penetrating the skull.
“Q Do you have any opinion, Dr. Johnson, as to how long Roderick Neiss was alive after this missile struck him ?
“A He was dead when I arrived at 10:00 a. m. He had been dead perhaps an hour or so. I would expect his — he could have survived as long as half an hour, from the nature of the injuries.”

Other facts will he related in the course of this opinion.

The brief filed in this court by defendant Brookshire contains twelve separate assignments of error. In substance, these assignments are: that the information is insufficient; that the Circuit Court of Cooper County lacked jurisdiction; that his lawyer was incompetent; that the prosecuting attorney was guilty of suborning perjury; that the trial court erred in not directing a verdict of not guilty; that the court erred in giving instruction No. 2 on murder in the first degree; that the court erred in giving instruction No. 3 on murder in the second degree; that the court erred in giving instruction No. 4 defining “feloniously,” “wilfully,” “deliberately,” and other words usually employed in instructions on murder; that the court erred in failing to give a manslaughter instruction; that the court erred in refusing to give instruction B on the right to defend the defendant’s home; that the court erred in its refusal to give instruction H to the effect that the State vouched for the truthfulness of evidence given by witnesses for the State; and, finally, that the court erred in permitting the enemies of the defendant to testify concerning the veracity of the defendant.

We shall dispose of the assignments briefed in the order stated supra.

In his brief, defendant contends that the information was deficient in that “The information did not state facts sufficient to constitute a crime in that the weapon alleged to have been used was not loaded with leaden balls or any kind of ammunition that was deadly, and in that the information does not allege when and where the deceased died, and for these reasons was fatally defective.”

The information reads: “Comes now Larry M. Woods, Prosecuting Attorney within and for the County of Boone and State of Missouri, and upon his official oath informs the Court that W. A. Brookshire on or about the 9th day of November, 1960, at the said County of Boone and State of Missouri, did in and upon one Roderick J. Neiss feloniously, wilfully, premeditatedly, deliberately, on purpose and of his malice aforethought, make an assault with a deadly and dangerous weapon, to wit: a .32 caliber Colt automatic pistol, did shoot, discharge, strike and wound the said Roderick J. Neiss, and by reason thereof the said Roderick J. Neiss did die; and Larry M. Woods, Prosecuting Attorney of Boone County, Missouri, upon his official oath aforesaid, does say that W. A. Brookshire in the manner and means aforesaid, feloni-ously, wilfully, premeditatedly, deliberately, on purpose and of his malice aforethought, did kill and murder him, the said Roderick J. Neiss; against the peace and dignity of the State.” (Omitting signature and oath of Prosecuting Attorney.)

The information was signed and sworn to by the prosecuting attorney on the 9th day of December, 1960, one month after the shooting occurred. It was filed that same day. Defendant did not file a bill of particulars as authorized by S.Ct. Rule 24.03, V.A.M.R., nor did he question the sufficiency of the information in any manner before trial. The trial was had in June, 1961, within one year after the offense was alleged to have been committed. Defendant admitted the shooting to have occurred on November 9, 1960, and that death resulted within a short time on the same day. His defense was self defense and defense of his home.

S.Ct. Rule 24.01 provides that “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. * * * ” (Emphasis supplied.)

S.Ct. Rule 24.11, which is substantially the same as Sec. S4S.030, V.A.M.S., reads in part that no information shall be deemed invalid for any “defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits: * *

We are of the opinion that the information meets the requirement of S.Ct. Rule 24.01, supra. The information, dated December 9, 1960, in substance, charges that the defendant W. A. Brookshire, on the 9th day of November, 1960, in Boone County, Missouri, did make upon one Roderick J. Neiss an assault with a deadly and dangerous weapon, that is, a .32 caliber Colt automatic pistol, did shoot the said Neiss, and by reason thereof Neiss did die. Further, the information charged that defendant in the manner and means aforesaid feloniously, wilfully, premeditatedly, deliberately, on purpose and of his malice aforethought did murder Neiss. The charge contains all the essential elements of murder. It is expressed in language of sufficient certainty as to leave no doubt that the charge against defendant was that he shot and killed Neiss on November 9, 1960, in such manner as to be murder in the first degree.

The defendant, in support of his contention that the information is bad, cited State v. Johnson, 191 Mo. 177, 90 S.W. 89; State v. Williams, 184 Mo. 261, 83 S.W. 756, and State v. Furgerson, 152 Mo. 92, 53 S.W. 427. In State v. Furgerson, the deadly weapon involved was an ax. The indictment was held bad on the ground that the word “with” was omitted and for that reason it was not charged that the homicide was committed with an ax. We need not comment on the ruling made in that case. In the information now before us, it was charged that the assault was made with a .32 caliber Colt automatic pistol. State v. Baird, 297 Mo. 219, 248 S.W. 596, 1. c. 598(1). In State v. Williams, an information was held bad because it omitted the words “then and there” so that the charge of felonious assault was not connected with the wounding. In State v. Williams, the court cited Chitty’s Criminal Law as authority for its ruling. In State v. Johnson, the court followed the ruling in State v. Williams, and State v. Green, 111 Mo. 585, 20 S.W. 304, was there considered a leading case.

This court, however, long ago departed from the extremely technical requirements of common law indictments and informa-tions. See State v. Stringer, 357 Mo. 978, 211 S.W.2d 925, where the subject was considered at length and in which State v. Green; State v. Williams; State v. Johnson, and Chitty on Criminal Law, supra, were mentioned. In speaking of the old rules concerning the form of indictments and approving quotations from various authorities, the court stated (211 S.W.2d 1. c. 928, 929): “The underlying and really basic reasons for the enforcement of the extremely technical requirements of common law indictments and informations have often been noted and we indicate them but briefly. At common law all felonies, particularly all homicides, were punishable by death. 1 Stephen, History Of The Criminal Law Of England, p. 487; 1 Hale, Pleas Of The Crown, p. 351. There were the attendant consequences of attainder, forfeiture of property and corruption of blood. 2 Coke Upon Littleton, 391b. Of necessity some palliatives to these severe judgments and their consequences had to he invented. ‘Undoubtedly, the merciful inclination of the judges in favor of life accounts for a large part of the purely technical requirements in the old indictments. The technical rules served a justifiable and even necessary purpose in restraining the brutal severity of the criminal law a century (and a half) ago.’ 10 Har.L.R. 98, 101 (1897). (See also the notes in 39 U.Mo.B. 37 and 30 Jour.Crim.L. & Crim., p. 135 and a comparison of the indictment as it was in State v. Barrington, 198 Mo. 23, 95 S.W. 235, and as it would be today under the English practice in 12 St.L.L.R. 281.) These basic reasons for the rules have ceased to exist and ‘It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule persists from blind imitation of the past.’ Holmes ‘The Path Of The Law’ (10 Har. L.R. 457).” See also the case of State v. Haynes, Mo., 329 S.W.2d 640, where certain omissions from an information were considered. This court there said (1. c. 643) : “All of the essential elements of the crime of murder in the first degree are sufficiently alleged. Further, since no attack was made upon the amended information before the trial, any indefiniteness in the description of the way the crime was committed may not be considered after verdict.”

We rule the information sufficient and further that the omission of the words “then and there” and the omission of an allegation that the pistol was loaded with leaden balls did not render the information fatally defective. State v. Stringer; State v. Haynes, supra; State v. Finn, Mo., 243 S.W.2d 67,1. c. 70(1); State v. Dildine, 330 Mo. 756, 51 S.W.2d 1, 1. c. 2(4-6).

Defendant says that the information is fatally defective in that it does not allege the time of death of the victim and that such an allegation is necessary because if death does not occur within one year and a day after the date of the alleged act of homicide, it is not murder. That contention may be sound in cases where time is an issue such as in a case where due to circumstances a prosecution cannot be or is not begun until a year or more after a homicide. However, in the case before us, the information was filed December 9, 1960, charging that Brookshire shot and killed Neiss on November 9, 1960. The trial was had in June, 1961, within less than one year after the fatal shooting. These facts appear on the court records. The omission of an allegation as to the time of death could not and did not prejudice the rights of the defendant. In such circumstances, what justification could any court give to remand the case for retrial? The answer is obvious. We rule the defendant was not prejudiced by the omission. We are supported in our ruling by a number of cases wherein facts similar to those in the case now before us were presented to the courts. In People v. Corder, 306 Ill. 264, 137 N.E. 845,1. c. 848, 849 (1-3), the court, in speaking about the omission of the day death occurred in a homicide case, said, “Where, as in this case, it appears from the indictment that the indictment was returned within a year and a day after the cause of death was administered, it is not necessary to allege the exact date of the death.”

In a similar situation, the Oregon Supreme Court, in State v. Kelley, 118 Or. 397, 247 P. 146, 1. c. 151(17), stated, “If the defendants killed Sweeney on the day mentioned he must have died at that time. No man can be said to be killed unless he is dead.” In Milburn v. Commonwealth, 223 Ky., 188, 3 S.W.2d 204, 1. c. 205(2), where an indictment was returned on October 6, 1926, wherein it was charged that deceased “was shot on the - day of -, 1926,” but no date was stated, the court said, “It necessarily follows that the death of Hays occurred within a year and a day from the infliction of the wound, * * See also State v. Stone, 169 Wash. 233, 13 P.2d 427, 1. c. 428(1).

The next point briefed is that the Cooper County Circuit Court did not have jurisdiction on the ground that defendant did not disqualify Judge Dinwiddie of Boone County, Missouri; that Judge Samuel E. Semple was illegally transferred to Boone County for the purpose of ruling on defendant’s application for a change of venue which was based on the prejudice existing in Boone County. There is no merit in this contention. In the application for a change of venue, the defendant made the following statement:

“3. The Defendant further states that the Honorable W. M. Dinwiddie and the Honorable Sam C. Blair, are so sensitive to newspaper publicity that they would and have refused the Defendant a fair and impartial trial because of newspaper publicity.”

Judge Dinwiddie entered an order sustaining the application for disqualification and requested the Supreme Court to substitute a judge. The Supreme Court made an order temporarily transferring Judge Semple to the Boone County Circuit Court. Judge Semple ordered the cause to be sent to Cooper County for trial. No objection was made by the defendant to any of these orders prior to the time the case reached Cooper County.

When the case reached Cooper County, defendant moved that the cause be remanded to the Boone County Circuit Court on two grounds, to wit: first, that in his application for change of venue, he had not disqualified Judge Dinwiddie; and second, that in his application, he had alleged that prejudice existed against him in Boone, Cooper, Howard, Randolph, Audrain, Calla-way and Cole Counties. In this application, defendant stated that two newspapers published in Columbia, Missouri, were widely circulated in the named counties and that these newspapers had so misrepresented the facts that he could not have a fair trial in any of the counties named. There is no merit in these contentions. This court en banc, in the case of State ex rel. Wolfner v. Harris,, 312 Mo. 209, 278 S.W. 668, 1. c. 669(2), stated that “Nothing is better settled in the practice of this state than that the only way to remedy the irregular or erroneous awarding of a change of venue is by saving exceptions at the time the change is ordered and in the court in which ordered.” A like ruling was made in State v. Wilson, 345 Mo. 862, 136 S.W.2d 993. Defendant cited the case of Thompson v. Sanders, 334 Mo. 1100, 70 S.W.2d 1051, in support of his contention. A reading of the opinion in that case indicates that it is authority against defendant. The law is also well settled that a defendant may not allege in his application for a change of venue that prejudice exists in multiple circuits. In his application, the defendant alleged prejudice to exist in three judicial circuits and a portion of two others. This he may not do. State ex rel. Cottrell v. Wofford, 119 Mo. 408, 24 S.W. 1009.

There is no merit in defendant’s assignment that his attorney, Richard K. Phelps, was in any way incompetent to defend Brookshire properly. The record shows that Phelps was very alert during the trial. The argument made by Phelps to the jury was vigorous and intelligent. Furthermore, the record justifies the statement that Phelps was a former schoolmate of Brook-shire and came to his aid in an hour of need; that he took an unusual interest in the case. It ill behooves Brookshire now to state that Phelps was in any way incompetent. The point is ruled against the defendant.

In point four of the brief, Brook-shire states that he was denied due process of law because the prosecuting attorney was guilty of suborning perjury. Brook-shire lists twelve of the State’s witnesses as committing perjury. This is, indeed, a bold charge to make. The record is devoid of any substantial evidence indicating perjury on the part of the witnesses named. To refute this baseless charge,, we shall state defendant’s theory or reason for claiming perjury. As to one witness, Brookshire’s contention is “ * * * perjury suborned by the Prosecuting Attorney, Larry Woods and committed by Dr. Richard E. Johnson, a witness for the State that the bullet that pierced the head and that caused the death of the deceased Neiss, entered from the back of Neiss’s head.” Brookshire says that evidence of the doctor was perjury because witnesses viewing the body of the deceased on the night of the shooting made statements that the deceased had been shot in the forehead; further, that Exhibit 1, supra, showed a wound in the forehead. Dr. Johnson’s evidence was not based on appearances but on the results of an autopsy. It would serve no useful purpose to extend this opinion, already too lengthy, to review charges against other witnesses. The charge of perjury is utterly without foundation in fact.

In assignment five, it is contended that the evidence established that the killing was justifiable homicide. In fact, defendant, in his reply brief, states that “The appellant in his brief has shown conclusively that the Coroner’s testimony in the trial established the fact that the bullet entered the forehead.” It is our opinion that the facts and circumstances of the shooting, as stated supra, were sufficient to justify a finding that the killing was not justified. The jury could well have drawn the inference from the evidence that when Brook-shire went to his room, procured the pistol, and with it in his hand went back downstairs where deceased was, he was seeking trouble. The jury could also infer that deceased was shot in the back of the head and not in the forehead as claimed by the defendant; further, that the knife which Brookshire claimed was lying beside the body and which was not mentioned until after the coroner’s inquest, was in fact not lying beside the body as claimed. Then, too, fourteen witnesses testified that Brook-shire’s reputation for truth and veracity was bad. Among these witnesses were a state senator, a state representative, a school teacher, county officers, lawyers, farmers, and neighbors of Brookshire. Not a witness testified to the contrary. We rule that the evidence was sufficient to sustain the verdict of the jury. Cases cited by the defendant, such as State v. Whited, 360 Mo. 956, 231 S.W.2d 618, are not in point. In that case, the deceased had administered a severe beating to the defendant. This court held the evidence supported manslaughter and not murder in the second degree.

Defendant says instruction No. 2, submitting the case to the jury on murder in the first degree, was erroneous. Since the verdict found defendant guilty of murder in the second degree, we need not review this assignment of error. State v. Strong, Mo., 339 S.W.2d 759 1. c. 765(8).

In point No. 7, defendant says the court erred in giving an instruction (No. 3) on murder in the second degree. The point is made that the evidence was insufficient to sustain a verdict of murder in the second degree. In addition to what has already been said, we shall treat this assignment to some extent later in this opinion in dealing with the failure of the court to give a manslaughter instruction. Other reasons advanced are that the instruction failed to inform the jurors that if they found that defendant shot deceased in defense of his home or of his person, the jury should find defendant not guilty. At defendant’s request, the court gave an instruction on self defense as well as one on defense of his home. These instructions which must be read in connection with instruction No. 3 amply preserved the rights of the defendant. The precise question was ruled by this court in State v. Clary, Mo., 350 S.W.2d 809, 1. c. 813(6). Instruction No. 3 referred the jury to instruction No. 4 where various terms were defined. Referring the jury to another instruction for definitions is not error. State v. Stogsdill, 324 Mo. 105, 23 S.W.2d 22,1. c. 26 (2-4).

In assignment eight, complaint is made of instruction No. 4 which defined “feloniously,” “wilfully,” “deliberately,” “premeditatedly,” “malice,” and “malice aforethought.” Such an instruction is usually given in murder cases and has been approved many times. State v. Stogsdill, supra.

In assignment nine, defendant says the court erred in not giving an instruction on manslaughter. We are of the opinion that the evidence did not justify such an instruction. The homicide was either justified on the defenses submitted to the jury, that is, self defense or defense of his home, or, if not so justified the killing was murder. The defendant, as well as the State, cited the case of State v. Creighton, 330 Mo. 1176, 52 S.W.2d 556. In that case, this court considered at length the question of what the evidence must show to require a manslaughter instruction. The court stated the general rule to be, 52 S.W.2d p. 561 (2-5) : “Where the record shows personal violence — a battery — inflicted upon the slayer by the deceased at the time of the homicide, the general rule is that a manslaughter instruction is called for, State v. Bongard (Mo.Sup.Div. 2) 330 Mo. 805, 51 S.W. (2d) 84, * * *. an¿ ⅛⅛ js true though the evidence consist of the testimony of the defendant alone, State v. Heath, 221 Mo. 565, 581, 121 S.W. 149, 153; State v. Stewart, 278 Mo. 177, 185, 212 S.W. 853, 855.” To the same effect is the ruling in State v. Bongard, 330 Mo. 805, 51 S.W.2d 84, 1. c. 88, 89(3,4), cited by the State and the defendant. Therein (51 S.W.2d 1. c. 89), the rule in this state is clearly stated and is applicable to the case now before us: “But, in view of the long line of decisions cited in * * *, it appears to be well settled that the law of this state is not as liberal as in some other jurisdictions; and that to constitute adequate provocation there must be more than opprobrious words, more, even, than a demonstration with a deadly weapon imminently threatening danger — there must be actual violence to the person.”

In the case of State v. Wright, Mo., 336 S.W.2d 714, 1. c. 717(1), cited by the defendant, the rule set forth in State v. Creighton and in State v. Bongard, supra, was approved. In the Wright case, the court did not in fact relax the rule as defendant urges. Therein, the court ruled that in the peculiar circumstances there present (not present in the case now before us), “there was sufficient evidence of personal violence to bring the case within its terms,” meaning the rule in State v. Creighton and in State v. Bongard, supra. In the case before us, there was not a shred of evidence that the deceased touched the defendant. We rule the trial court was justified in not giving a manslaughter instruction.

Defendant offered two instructions (B and C) on his theory that he shot Neiss in defense of his home, citing State v. Shiles, Mo., 188 S.W.2d 7. The court refused instruction B but gave instruction C. In our opinion, instruction C sufficiently covered this defense and the court did not err in refusing instruction B. This theory of defense was vigorously argued to the jury by the defendant and by his counsel Phelps. This tenth assignment of error has no merit.

In assignment eleven, the refusal of the court to give instruction H, offered by the defendant, is claimed to be error. This instruction would have informed the jury, in substance, that when a party places a witness on the stand, he vouches for the truthfulness of his testimony. Defendant cited a number of authorities, including 98 C.J.S. Witnesses § 477, pp. 355, 356, in support of his contention. In the argument of the brief, defendant says that the case of State v. Wright, 352 Mo. 66, 175 S.W.2d 866, 1. c. 872, settles this point. Defendant says, “Glenn Powell testified the State vouched for his testimony and was bound by it.” Powell, the sheriff, did testify for the State. The prosecution in no way questioned the truth of his evidence. There was no need for the court to give the requested instruction. In our opinion, the defendant has misinterpreted the authorities cited. In 98 C.J.S. Witnesses § 477, p. 355, it is stated, “As a general rule, a party cannot impeach a witness whom he has introduced either in a civil or in a criminal case.” The State did not attempt to impeach the evidence of Sheriff Powell. In State v. Wright, 352 Mo. 66, 175 S.W.2d 866, it was held that in a case where the State introduces evidence of statements made by a defendant, the defendant is entitled to have the whole of the statement presented to a jury. Further, if such a statement contains matters which are favorable to the defendant, such as self defense, then the defendant would be entitled to a self-defense instruction. The State, however, is not compelled to accept as true the self-serving statements contained in a defendant’s confession or admission which is introduced by the State, In the case now before us, Brookshire told the sheriff about the occurrence including what the defendant had said in justification of the shooting. The trial court gave an instruction on self defense and defense of defendant’s home. That complied with the ruling in State v. Wright, 352 Mo. 66, 175 S.W.2d 866.

Defendant’s last point briefed is that “The Court committed reversible error in permitting the enemies of the defendant to testify concerning the truth and veracity of the defendant, for the reason there was no testimony offered by the State that contradicted the testimony of the defendant, and for the further reason the Court abused its discretion in receiving this testimony which denied the defendant a fair and impartial trial as guaranteed to him by Article I, Sections 10 and 18a of the Constitution of Missouri, and Amendments V, VI, and XIV, Section I of the Constitution of the United States. 26 Am.Jur. 388; 20 Am. Jur. 304 ; 33 A.L.R. 1219.” The authorities cited concern the matter of impeaching a defendant as to his good character and not as a witness for truth and veracity. The defendant testified and the State had the right to offer evidence as to his general reputation for truth and veracity. 58 Am. Jur. 372, Sec. 685; 98 C.J.S. Witnesses § 476, p. 354; 98 C.J.S. Witnesses § 512, p. 417; State v. Quinn, 345 Mo. 855, 136 S.W. 2d 985, 1. c. 987(8). We cannot agree with the defendant that the State did not offer any evidence that contradicted that of the defendant. The evidence of the State as to where the deceased was shot was in direct conflict with defendant’s evidence and theory.

We have examined all of the points briefed and also such matters as are required by S.Ct.Rule 28.02. Finding no reversible error, we hereby affirm the judgment of the trial court.

All concur.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    Joseph H. LANGWORTHY, Appellant, v. The PULITZER PUBLISHING COMPANY, a corporation, Respondent.
    No. 49669.
    Supreme Court of Missouri. Division No. 2.
    May 13, 1963.
    Motion for Rehearing or for Transfer to Court En Bane Denied June 4, 1963.

      Joseph Langworthy, Pacific, pro se.
    Robert D. Evans, Robert B. Hoemeke, Green, Hennings, Henry, Evans & Arnold, St. Louis, for respondent.
   STOCKARD, Commissioner.

Plaintiff has appealed from a judgment dismissing his petition for libel on the ground that it failed to state a claim upon which relief may be granted.

On May 11, 1956, defendant published the following article in its newspaper of general circulation:

“ ‘TOWHEAD PETE’S’ GANG OF 5 BOYS, 4 GIRLS SEIZED.
“ ‘Towhead Pete’ and his gang were rounded up today by county detectives at the personal direction of Superintendent of Police Albert E. DuBois, who found himself on a ‘hot spot.’
“Joseph H. Langworthy, an attorney of 512 Ivy Avenue, Times Beach, reported someone had pushed open a window at his home and had taken three pieces of Swiss cheese, a piece of cake, some jello and $20. He wanted something done about it and told police so in emphatic terms.
“The gang of ‘Towhead Pete’ was rounded up. It consists of five boys— 12, 10, 6, 5 and 2 years old — and four girls, 13, 8, 6 and 4 years. They admitted getting into the house, but insisted they found only 28 cents and not $20.
“After a lecture at police headquarters, they were turned over to juvenile authorities for another lecture, that is, all except the 2-year-old, who was in diapers and police said they ‘couldn’t pin anything on him, anyway.’ ”

Plaintiff alleged in his petition that “said matter” was “false, malicious, and defamatory” to him and that it was published concerning him “with actual malice” and was an invasion of his right of privacy in that it was unwarranted by the incidents which actually occurred, that the public had no legitimate concern in the matter as published, and that the article was published without his consent or prior knowledge. He then alleged that “said matter” was false in that (a) there was no person involved either named or known as “Towhead Pete,” “Pete” or “Peter;” (b) no child involved was as young as the age of four years or who was' in diapers; and (c) there was no child involved about whom the police made the statements attributed to them. He then alleged that the “matter published” was a “false and unfair abridgement of what actually occurred” in that (a) the incidents which actually occurred and were reported by him to the police “included a long series of crimes” or “repeated acts of larceny, stealing, burglary, and vandalism,” a number of the children involved were “delinquent children who needed help,” and while repeated efforts to secure help had been made by him, the juvenile authorities took the position that the detection of one further crime would have to be made before they would proceed against the delinquent children; (b) the published article reported as a single incident a garbled version of two or more incidents but omitted some of the articles which were stolen, and also omitted the fact that the children which were involved broke into and entered the dwelling house of plaintiff by forcibly breaking an outer window with intent to commit a felony therein; and (c) the published article omitted the fact that most of the money stolen was that of plaintiff’s 7-year-old daughter which she was proudly saving to buy a bicycle and that the loss was a strong emotional shock to her. Plaintiff then purported to plead innuendoes as follows: “Said matter” meant, was intended to mean, and was understood by those to whom published that (a) plaintiff had falsely reported that more money was stolen than was actually taken and therefore was untruthful and for that reason not well-suited for his professional duties as an attorney; (b) plaintiff was “an inordinately selfish and egocentric person who greatly magnified and enlarged the importance of a trivial wrong committed against him by small children and demanded police action against the perpetrators of such wrong to an extent that he was ridiculous;” (c) plaintiff was “lacking in the good judgment, balance, and regard, for others requisite to the proper performance of his professional duties as an attorney;” and (d) plaintiff “used undue and unwarranted pressure on public officials in a manner not befitting an attorney in the sense that he demanded police action beyond the point of good judgment and to the extent that he was ridiculous.” In conclusion plaintiff alleged that the publication caused him “great humiliation, mortification, shame, embarrassment, and mental suffering,” and that “said matter” was a “malicious defamation” of him in that it tended to provoke him to wrath and expose him to public hatred, contempt and ridicule and deprive him of the benefits of public confidence and social intercourse and intended to injure and did injure him as a member of his profession. He prayed for $10,000 actual and $10,000 punitive damages.

In view of plaintiff’s attempt to plead several innuendoes we should set forth certain basic rules pertaining to the law of libel and thereby define and delineate the precise issues for determination.

Words which are defamatory per se, that is, defamatory on their face without the aid of extrinsic proof, are actionable and the allegation in the petition of extrinsic facts in the form of what is referred to as the inducement and innuendo is not required in order to state a cause of action. S3 C.J. S. Libel and Slander §§ 8 and 162; Chambers v. National Battery Co., 34 F.Supp. 834. In such event the law presumes damages which may be alleged generally, S3 C.J.S. Libel and Slander §§ 170b and 262; Eby v. Wilson, 315 Mo. 1214, 289 S.W. 639, SO A.L.R. 268, and special damages need not be alleged although proof of actual damage rfiay be made to support the presumption of injury and to show its extent. S3 C.J.S. Libel and Slander §§ 264 and 265. A petition based on published words not defamatory per se may state a cause of action for what is referred to as libel per quod. See Nordlund v. Consolidated Electric Co-operative, Mo., 289 S.W.2d 93, 57 A.L.R.2d 832; 53 C.J.S. Libel and Slander § 8, pp. 43-44. However, the petition must allege extrinsic facts which show that although the words published were not libel per se they were in fact defamatory, and it is the uniform rule in Missouri and elsewhere that in such situation special damages must be pleaded in order for the petition to state a cause of action. Nordlund v. Consolidated Electric Cooperative, supra; Eby v. Wilson, supra; Furlong v. German-American Press Ass’n, Mo., 189 S.W. 385; Mitchell v. Bradstreet Co., 116 Mo. 226, 22 S.W. 358, 724, 20 L.R.A. 138; Curry v. Collins, 37 Mo. 324; National Refining Co. v. Benzo Gas Motor Fuel Co., 8 Cir., 20 F.2d 763; McBride v. Crowell-Collier Pub. Co., 5 Cir., 196 F.2d 187; Chambers v. National Battery Co., 8 Cir., 34 F.Supp. 834; Cal-Therm Industries, Inc. v. Dun & Bradstreet, Inc., D.C., 75 F.Supp. 541; Landstrom v. Thorpe, 189 F.2d 46, 26 A.L.R. 2d 1170, certiorari denied, 342 U.S. 819, 72 S.Ct. 37, 96 L.Ed. 620; Muchnick v. Post Publishing Co., 332 Mass. 304, 125 N.E.2d 137, 51 A.L.R.2d 547; 33 Am.Jur., Libel and Slander § 243 ; 53 C.J.S. Libel and Slander § 170a.

Plaintiff has pleaded no special damages in this case. Therefore, for the petition to state a cause of action the published words must constitute libel per se. “In determining whether language is libelous per se, it must be viewed stripped of any pleaded innuendo. The meaning of the phrase ‘per se’ is ‘taken alone, in itself, by itself.’ Words which are libelous per se do not need an innuendo, and, conversely, words which need an innuendo are not libelous per se.” Shaw Cleaners & Dyers, Inc. v. Des Moines Dress Club, 215 Iowa 1130, 245 N.W. 231, 86 A.L.R. 839. The motion to dismiss the petition for failure to state a claim upon which relief may be granted does not admit the construction of the words pleaded in an innuendo, Fritschle v. Kettle River Co., 346 Mo. 196, 139 S.W.2d 948; Hylsky v. Globe Democrat Pub. Co., 348 Mo. 83, 152 S.W.2d 119, and whether the alleged libelous words, when given their natural meaning, Bernhardt v. Armbruster, Mo.App., 217 S.W.2d 759; Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, are “capable of the defamatory meaning ascribed to them” is a question of law for the court to decide on a motion to dismiss. Cook v. Pulitzer Pub. Co., 241 Mo. 326, 145 S.W. 480, 485.

Section 559.410, RSMo 1959, V.A. M.S., defines libel as follows: “A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, * * The Missouri courts, as is set out in Coots v. Payton, 365 Mo. 180, 280 S.W.2d 47, have uniformity held that the published writing must itself amount to a “defamation,” and that if in addition (and only if) it also exposes one to hatred or contempt, etc., it is libelous. It was held in Diener v. Star-Chronicle Pub. Co., 232 Mo. 416, 135 S.W. 6, 11, that “There must be defamation in a libelous sense before there can be a libel. * * * To make a libel there must be defamation in the sense of the law, before the public scorn and contempt feature is operative. Defamation includes the idea of calumny, aspersion by tying; the injury of another’s reputation in that way. To defame is to speak evil of one maliciously, to dishonor, to render infamous.” What is there defamatory about plaintiff in the published article? We can find nothing. The most that can be said is that in some small way it may have subjected plaintiff to ridicule. However, “a communication is not defamatory solely because it may expose one to ridicule in the sense, at least, that it exposes him to jests or injured personal feelings. And, however difficult it may be to formulate a definition of ‘defamatory’ which may be applied in determining whether particular words constitute a ‘defamation’ we need go no further * * * than to reach the conclusion that words do not constitute a ‘defamation’ solely because they subject one to ridicule.” Coots v. Payton, supra, 280 S.W.2d at p. 54. No reasonable construction of the published words in this case could result in them being defamatory of plaintiff. For that reason the publication of them did not and could not be found to constitute libel per se, and the petition does not state a cause of action for libel.

Plaintiff next asserts that his petition, although in one count only, also states a claim for invasion of privacy. He cites several cases including Barber v. Time, Inc., 348 Mo. 1199, 159 S.W.2d 291. In that case this court recognized that such a cause of action exists in this state and it stated that “establishing conditions of liability for invasion of the right of privacy is a matter of harmonizing individual rights with community and social interests.” It was then held: “The determination of what is a matter of public concern is similar in principle to qualified privilege in libel. It is for the court to say first whether the occasion or incident is one of proper public interest. * * * If the court decides that the matter is outside the scope of proper public interest and that there is substantial evidence tending to show a serious, unreasonable, unwarranted and offensive interference with another’s private affairs, then the case is one to be submitted to the jury.” Plaintiff alleged that he did report to the police that a number of children had broken into his house and committed a theft. That report and the resulting action of the police was property a matter of public interest and defendant could comment thereon in its newspaper. The fact that plaintiff may think the comment was not as complete or accurate as he would have preferred it to be does not result in the publication constituting an invasion of his privacy when it did not constitute “a serious, unreasonable, unwarranted and offensive interference” with his private affairs. No action for damages lies against a newspaper for merely inaccurate reporting when the publication does not constitute libel. See 66 C.J.S. Newspapers § 21. In addition, the right of privacy is not an absolute right, and it protects only the ordinary sensibilities of an individual and not supersensitiveness. 77 C.J.S. Right of Privacy § 2. Admittedly it is difficult to define precisely the limits of what is and is not an actionable invasion of privacy, but some factual situations so clearly and unquestionably do not result in an invasion of privacy that the courts should so declare as a matter of law. We have no hesitancy whatever in ruling that the subject of the publication in this case was a matter of public concern, and even if the published report was incomplete and in the asserted respects inaccurate it did not constitute an actionable invasion of the privacy of plaintiff.

Plaintiff also asserts that his petition should be construed to state a cause of action for emotional suffering. “The rule is well established that, in the absence of evidence of an unlawful invasion of one’s rights under circumstances of malice, wilfulness, wantonness, or inhumanity, there is no recovery for fright, terror, anxiety, mental distress, or nervousness, unless these are accompanied by some physical injury.” Gambill v. White, Mo., 303 S.W.2d 41, and see the numerous cases there cited. This rule applies equally as well to a claim for damages for emotional suffering when there is no actionable invasion of plaintiff’s rights. We need not indicate whether emotional suffering would be an element of damages in an action for libel or invasion of privacy. It is sufficient to rule, which we do, that it alone does not give rise to a separate cause of action.

The petition was properly dismissed, and the judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    Gabriel URNSTEIN and Goldye Urnstein, d/b/a Sherwood Day School Plaintiffs-Respondents, v. VILLAGE OF TOWN AND COUNTRY, a Municipal Corporation, James A. McCollum, Joseph Leopold, Russell J. Gittens, Grindon E. Leslie, S. D. Fisher, Arthur E. Jones, Defendants-Appellants.
    No. 49727.
    Supreme Court of Missouri, Division No. 2.
    May 13, 1963.
    Motion for Rehearing or for Transfer to Court En Bane Denied June 4, 1963.

      Carroll J. Donohue, Shulamith Simon, Husch, Eppenberger, Donohue, Elson & Jones, St. Louis, for defendants-appellants.
    Erwin Tzinberg, Albert A. Michenfelder, Jr., Ziercher, Tzinberg, Human & Michen-felder, Clayton, for plaintiffs-respondents.
   BARRETT, Commissioner.

The Village of Town and Country, its board of trustees and its building commissioner appeal from a declaratory judgment decree which adjudges unconstitutional, as applied to the plaintiffs and their private school, a part of the village’s comprehensive zoning ordinance. The village contends, of course, that it was authorized to adopt the ordinance, that it had authority to zone and restrict private schools, that its ordinance was reasonable and that the court erroneously declared it unconstitutional. On the other hand, the respondent owners contend that private and public schools may not be distinguished, that an ordinance prohibiting or restricting private schools bears no relation to public safety or general welfare and is therefore arbitrary, unreasonable and unconstitutional.

The most important factor upon this particular appeal is the fact that the cause was tried and submitted upon a very brief agreed statement of facts and “stipulation of issues” to be decided. In summary these are the stipulated facts: Gabriel and Goldye Urnstein own a tract of land, 14.845 acres, in Village of Town and Country, and “in buildings situated on the property” are “co-partners doing business as Sherwood Day School, a private school with academic classes at the present time from first grade through twelfth grade.” The private school is “conducted by plaintiffs for profit purposes” and they have operated it “on a portion of the above premises since 1945.” The Village of Town and Country was incorporated in January 1950, and in February 1951 adopted its comprehensive zoning ordinance number 50 and the plaintiffs’ property is in a “Zone ‘A’ Residential District.” On July 15, 1954, the then village building commissioner issued the plaintiffs

a permit far “a two-room addition to a building” on the property. June 1, 1961, plaintiffs filed an application for a permit “to erect an additional school building” and that application was denied on the ground that the “use contemplated by the application for a building permit was in violation of the terms” of the zoning ordinance.

There was no appeal to the village board of adjustment and upon denial of the building permit plaintiffs filed this action. Furthermore, as stated, in addition to their stipulation of facts, the parties agreed and stipulated, so far as relevant here, “that the following are the issues in this cause: 1. The constitutionality of subparagraph 3 of Section 2, Article III of Ordinance No. SO, permitting only public schools, elementary and high, within Zone ‘A’ Residential District, and the determination as to whether said permitted use legally prohibits the location of a private school, operated for profit, within said Zone ‘A’ Residential District.”

This is not to criticize or discourage the trial of cases on agreed facts or stipulated issues, but in this instance the fact has had the necessary effect of strictly limiting the issues and the scope of this court’s review and decision. There is some risk of encumbering this opinion with a long list of cases, but upon this particular record the discrimination in cases serves not only to distinguish them either on principle or on their facts but also points up the limited question involved and at the same time indicates in part the reasons for the court’s conclusion and final disposition of the appeal. While this action originated in an application to the building commissioner for a permit “to build a four-room addition to said building,” the application and its purposes have now been ignored or forgotten. The immediate consequence of leaving out of consideration the application is that the court is not now concerned with and is not reviewing the propriety of the building commissioner’s denial of the building permit. State ex rel. Kaegel v. Holekamp, (Mo.App.) 151 S.W.2d 685; Fleming v. Moore Bros. Realty Co., 363 Mo. 305, 251 S.W.2d 8; Lumpkin v. Township Committee of Bernards, 134 N.J.L. 428, 48 A.2d 798. Furthermore, the extension or changing of a nonconforming use is not a problem. Women’s Christian Association of Kansas City v. Brown, 354 Mo. 700, 190 S.W.2d 900; Annotation 9 A.L.R.2d 1039; 42 A.L.R.2d 1146. Nor, in this connection, is the appeal concerned with a building ordinance regulating the subsequent alteration, enlargement or extension of an existing building. Annotation 64 A.L.R. 920. Ordinarily, when the constitutionality of a zoning ordinance has been involved, there has been an elaborate record and every fact relevant to zoning in general and to the particular land and its use has been in evidence and subject to review as “each case must be ruled on its particular facts.” Glencoe Lime & Cement Co. v. St. Louis, 341 Mo. 689, 694, 108 S.W. 2d 143, 145. See for example Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1025, 246 S.W.2d 771.

Then there are the purposeful differences in the statutes and ordinances involved in the various cases, a distinction the parties have not carefully observed. It is not necessary to review the statutes authorizing cities to zone (V.A.M.S. Secs. 89.020-89.140) and indicate their purpose or to consider the fundamentals of zoning. It is sufficient to say that zoning is a legislative function and that towns are authorized subject to certain limitations to regulate the use of property and may exclude all business operations from .residentially zoned areas. Ryan v. City of Warrensburg, 342 Mo. 761, 117 S.W.2d 303; Downing v. City of Joplin, (Mo.) 312 S.W.2d 81. In any event, ordinance number 50 is a comprehensive zoning ordinance and in so far as applicable here by Article III establishes “Zone ‘A’ Residential — Single Family— Dwelling District Regulations.” Specifically, section 2 provides that in this zone:

“A building or premises shall be used only for the following purposes:
“1. Single family dwellings.
“2. Churches.
“3. Public schools, elementary and high.
******
“5. Accessory buildings and uses customarily incident to the above uses, iji * ⅜ »

Regardless of the fact that the ordinance permits churches, it has been settled in this jurisdiction that churches, as with public schools, may not be excluded from a residential area on that basis alone. Congregation Temple Israel v. City of Creve Coeur, (Mo.) 320 S.W.2d 451. Since both parties rely on this case it must be pointed out that the opinion was confined to churches, the court explicitly pointed out that “private schools” along with other institutions were “reserved for decision when and if presented in future cases.” At this point it should be interpolated, perhaps, that in connection with the location of public schools the statutes have endowed school districts with the power of eminent domain, (V.A.M.S. Secs. 165.100, 165.370) if not incidentally with some of the attributes of sovereignty, and that power and authority have not been subordinated or made subservient to the cities’ right to zone. State ex rel. St. Louis Union Trust Co. v. Ferris (Mo.) 304 S.W.2d 896. While, as indicated, churches may not be excluded, this case is not concerned with an attempt to establish a parochial school as an adjunct to a church. Tustin Heights Association v. Board of Supervisors, 170 Cal.App.2d 619, 339 P.2d 914. Despite the fact that certain authoritative texts and some cases refuse to recognize the fact, there are several important distinctions in public schools and parochial schools (sometimes the latter are treated as “private schools”). See for example State ex rel. Wisconsin Lutheran High School Conference v. Sinar, 267 Wis. 91, 65 N.W. 2d 43; Great Neck Community School v. Dick, Sup., 140 N.Y.S.2d 221; and the dissenting opinion in Roman Catholic Welfare Corp. v. City of Piedmont, 45 Cal.2d 325, 289 P.2d 438. Compare on this particular point 1 Rathkopf, Zoning, Ch. 18; 11 Miami L.Q. 68; Annotation 36 A.L.R.2d 653, 660; Catholic Bishop of Chicago v. Kingery, 371 Ill. 257, 20 N.E.2d 583; Diocese of Rochester v. Planning Board of Town of Brighton, 1 N.Y.2d 508, 154 N.Y.S.2d 849, 136 N.E.2d 827. In State ex rel. St. Louis Union Trust Co. v. Ferris, (Mo.) 304 S.W.2d 896, (condemnation for a public school was involved) the ordinance “by means of restrictive provisions” excluded “the erection of any schoolhouse.” There, in considering Chapter 89 R.S.Mo.1959 (zoning) and Chapter 165 R.S.Mo.1959 (authorizing school districts to locate schools), the court pointed out that public school districts are invested with some of the attributes of sovereignty. The court said, “The selection, location, procurement of a site through condemnation and operation of a public school is a governmental and not a proprietary function.” Because of the differences and distinctions in public and parochial schools the parochial school cases are not considered in this opinion.

Having made these distinctions perhaps it is well to continue and note these further differentiating factors. This appeal is not concerned with the problem of whether the plaintiffs’ institution is a “school” as that term is employed in either a statute or an ordinance. In Langbein v. Board of Zoning Appeals of Town of Milford, 135 Conn. 575, 67 A.2d 5, the question was whether a “summer day school” was a school within the meaning of an ordinance permitting “schools” in a class “A” residential area. See also City of Miami Beach v. State ex rel. Lear, 128 Fla. 750, 175 So. 537, “a school for minors,” Livingston v. Davis, 243 Iowa 21, 50 N.W.2d 592, 27 A.L.R.2d 1237, whether a “private preschool or nursery” was permitted as a “private elementary school to age 14,” and, finally, Wiltwyck School for Boys, Inc. v. Hill, 14 A.D.2d 198, 219 N.Y.S.2d 161, in which it was held’ that plaintiff’s primary purpose was the “rehabilitation of delinquent or maladjusted boys” and therefore did not qualify as a “school.” The fact that one text devotes an entire chapter to forty-six separate subjects, from amusement parks to undertakers, of zoning classification is some indication of the increasing complexity of the problem. 2 Yokley, Zoning Law & Practice, Ch. XVIII, and see the annotation, 36 A.L.R.2d 653, “zoning regulations as applied to schools, colleges, universities, and the like.”

These are some of the distinguishing factors and having thus attempted to negatively delimit the issues it is necessary to consider the positive factors and the very limited facts of this record. As the court said of a claim that certain “restrictions” in a zoning ordinance were invalid, “The issue is not brought ‘to exact focus.’ * * * Appellant cannot challenge the validity of Section 8 of the ordinance on hypothetical grounds.” Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1. c. 1042, 246 S.W. 2d 1. c. 780. In the first place, while the general object of zoning is the promotion of the general welfare (Downing v. City of Joplin, supra), as to class “A” residential districts “Its ultimate purpose is to confine certain classes of buildings and uses to certain localities.” Langbein v. Board of Zoning Appeals of Town of Milford, 135 Conn. 1. c. 580, 67 A.2d 1. c. 7. And despite the indicated tendency to generalize as far as schools are concerned, “The validity of a .regulation which had the effect of excluding a particular type of school from a residential district has been sustained.” 36 A.L.R.2d 1. c. 655. All this is to point out, as the court did in the Congregation Temple Israel case, that the opinion in this case is to be strictly confined to this record and the stipulated issue, as to all other institutions including all other types of schools, • — -“these questions are reserved for decision when and if presented in future cases.”. (320 S.W.2d 1. c. 457).

The plaintiffs’ private school was not established after the enactment of the comprehensive zoning ordinance (City of Florence v. Turbeville, 239 S.C. 126, 121 S.E.2d 437, 85 A.L.R.2d 1143), and an existing ordinance was not amended to exclude or restrict an existing school. Phillips v. City of Homewood, 255 Ala. 180, 50 So.2d 267. Here the plaintiffs’ private school for profit “with academic classes * * * from first grade through twelfth” has been in existence and operated on “a portion” of the 14.845 acres since 1945. The Village of Town and Country was not incorporated until five years later and its zoning ordinance was not adopted until February 1951. And, although not mentioned by the parties and while not an issue, Section 1, Article V of the ordinance provides that “The lawful use of a building existing at the time .of the effective date of this ordinance may .be continued, although such use does not conform to the provisions hereof.” From this record all that is known of this school .is that it is a private school for profit, grades one to twelve, and is conducted in buildings on this property. The plaintiffs own the property and operate the school as “co-partners” for profit.

There is no information in this record as to the Village of Town and Country other than the fact that it was incorporated in 1950 and passed this ordinance in 1951. There is no information as to the exact location, nature or extent of the buildings in which the school is conducted, all that is known in this regard is that in 1954 a permit was issued for a “two-room addition .to a building.” Other than grades one to twelve there is no information as to the school’s standards, its curriculum, its faculty, its supervision and whether it meets the requirements of the public school laws of Missouri. Yanow v. Seven Oaks Park, Inc., 11 N.J. 341, 94 A.2d 482, 36 A.L.R.2d 639, 1 Rathkopf, Law of Zoning, Sec. 3. The school and the land are owned by husband and wife as a partnership and there is no evidence as to the school’s future in the event of a dissolution from any cause of . the partnership. In short, there are no surrounding circumstances to accompany the stipulated facts

The fact that Sherwood Day School is operated “for profit purposes” is not a determinative factor and yet its profit motive and its finances should be relevant circumstances. Livingston v. Davis, supra; Incorporated Village of Brookville v. Paulgene Realty Co., 24 Misc.2d 790, 200 N.Y.S. 2d 126. As indicated, there are numerous distinctions in public and private schools, including the fact that they often serve different interests and purposes (State ex rel. Wisconsin Lutheran High School Conference v. Sinar, supra) and perhaps, undeniably, a private school for profit infringes upon the general scheme of residential zoning. City of Florence v. Turbeville, supra. According to the stipulation of the parties the only issue here is whether “said permitted use” (public schools elementary and high) “legally prohibits the location of a private school, operated for profit” in a Zone A residential district. In the limited circumstances of this record, particularly in view of the facts set forth in the second paragraph above, there is an insufficient relation in the stipulated facts and the general welfare and as applied to these plaintiffs and this school the ordinance is arbitrary and unreasonable and, as the trial court held, therefore unconstitutional. As indicated, particular types of schools may be excluded from a residentially zoned area, “However, in most of the cases where the ordinance had the effect of excluding all types of schools, or a particular type of school, from a district, it has been held invalid on the ground that it was arbitrary and discriminatory, having no reasonable relation to the public health, morals, safety, or welfare, or specifically that it violated the due process clause.” 36 A.L.R.2d 1. c. 655-656. Despite the differences in the statutes, the ordinances and even the facts, this view of the ordinance as applied to this school and the stipulated facts is supported by the fundamental principle found in the following authorities: State v. Northwestern Preparatory School, 228 Minn. 363, 37 N.W.2d 370; Longbein v. Board of Zoning Appeals, supra; City of Miami Beach v. State ex rel. Lear, supra; Livingston v. Davis, supra; 1 Rathkopf, Law of Zoning & Planning, Ch. 18, Sec. 3, 18-27. Accordingly 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.


text:
    STATE of Missouri, Respondent, v. William Edward STAPLETON, Appellant.
    No. 49827.
    Supreme Court of Missouri, Division No. 2.
    May 13, 1963.
    Motion for Rehearing or for Transfer to Court En Bane Denied June 4, 1963.

      No appearance for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Margaret Bush Wilson, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   STOCKARD, Commissioner.

Defendant, charged under the habitual criminal act, was convicted of robbery in the first degree and sentenced to imprisonment for fifteen years. Defendant has appealed but has filed no brief. We consider all assignments of error in the motion for new trial.

The sufficiency of the evidence is not challenged so a brief statement thereof is sufficient. On the evening of April 22, 1962, Leon L. Morrison, a taxicab driver, picked up the defendant and pursuant to instructions took him to Twenty-fifth and Benton Streets in Kansas City. When Morrison turned on the cab dome light defendant told him to turn the light off and then said “this is a stick-up.” Defendant was seated in the front seat with Morrison, and while his right hand was in his jacket pocket or under the jacket as though holding a weapon, which Morrison believed he had, defendant took approximately $19 in bills from Morrison’s left shirt pocket. Defendant then got out of the taxicab, and when he used his right hand to open the door Morrison concluded that he did not have a pistol or weapon. Morrison then got out of his taxicab and started running after defendant, and picked up a portion of a brick and threw it at defendant which hit him and knocked him down temporarily. He then caught up with defendant and struck him several times with a stick or board. After retrieving his money, he called his dispatcher, reported the robbery, and the police were called.

The substance of the first six assignments in defendant’s motion for new trial is as follows: The court erred “in admitting incompetent, irrelevant and immaterial evidence” and in “excluding competent, relevant and material evidencethe verdict is “against the evidence,” against “the greater weight of the credible evidence,” against “the law under the evidence,” and “shows bias and prejudice on the part of the jury.” None of these assignments are sufficient to preserve any issue for appellate review. Supreme Court Rule 27.20, V.A.M.R.; State v. Stumph, Mo., 349 S.W.2d 954; State v. Herron, Mo., 349 S.W.2d 936; State v. Feasel, Mo., 344 S.W.2d 41.

The seventh assignment of error is that a witness for the state, Wesley Halsey, “stated to counsel for defendant in the outer hallways while the jury was deliberating that he had been promised an excessive sum of money to testify for the state and that he would not have testified to those facts except for said promise.” Attached to the motion for new trial was a statement, labeled an “affidavit” but not sworn to and in fact not shown by the transcript to have been signed, in which counsel for defendant purportedly asserted that while the jury was deliberating Wesley Halsey stated to him that he had been promised $20 by the investigator for the prosecuting attorney’s office “to testify to certain facts” in the case, and that he had stated that “he would not have testified to those facts had it not been for the promise he received.” Neither in the motion nor in the attached “affidavit” is there set out what “facts” the witness did testify to which he would not have testified but for the offer of $20. The transcript shows that after the verdict of the jury was received on September 25, 1962, the assistant prosecuting attorney asked the court if it wished to determine the sentence at that time, and the court replied that it did. The following then-occurred: “Mr. Isgur [counsel for defendant] : Before this is done, I would like to make a motion for a mistrial, or an alternative motion for a new trial, on the following grounds: I would like to make a record of this. While the jury was out Mr. Halsey, who was a witness for the prosecuting attorney in the prosecution of this case in the State of Missouri, was in the hallway outside of this court room and informed me, in the witness [presence?] of Mr. Leonard Hughes who is also an attorney in this city, that he has been promised money to testify in behalf of the prosecution of this case above and beyond the statutory witness fees.” The trial court then stated that “no one has testified under oath and you are just telling me what someone has told you, and all of that. My point is, I am going to sentence him now so that you can raise that question in this sentence, whether you think it is too high, in your motion for a new trial, * * Following some oral statements by counsel for the state and for defendant as to the appropriate sentence, the sentence was determined and announced. On October 2, defendant’s motion for new trial was filed, and the transcript shows that on October 25 the following occurred: “Now on this day comes the prosecuting attorney, comes the defendant William Edward Stapleton, in person and by attorney, Jack L. Isgur, and said defendant having been convicted by a jury to the charge of robbery, first degree, under the habitual criminal act, and said defendant’s motion for new trial heretofore filed on the second day of October 1962, is now by the court taken up, fully heard and considered by the court overruled.” The transcript does not show that any evidence was offered in support of the motion for new trial.

The statements in the seventh assignment of error and in the attached “affidavit,” which is nothing more than an unverified statement, are not supported by the record. “There is no more settled principle of law than the one that unverified allegations in a motion for a new trial in a criminal case do not prove themselves and cannot be considered unless substantiated by the record.” State v. Whitaker, Mo., 312 S.W.2d 34, 39. Although the remarks of the trial court refer to both the amount of the punishment and the procedure for making proof of the alleged incident, they clearly indicated, and properly so, that proof of the incident should be by some method other than unsworn statements of what other persons said. After an adequate period of time to prepare the evidence, if any, no proper record whatever was made of this alleged incident. The only record before us shows that a full hearing was had on the motion. This means that defendant was afforded an opportunity to present evidence in support of this assignment of error if he so desired. No such evidence was presented, and we can only conclude that either a further investigation disclosed no improper conduct, or that defendant waived his objection to the occurrence, whatever it was. There is nothing before us to justify a ruling that the trial court erred in overruling this assignment of error.

The eighth assignment of error is “That there is new evidence which has only been recently discovered, i. e., the promise of money to the witness, photographs showing injury to the defendant other than what was testified to in court, and additional witnesses to the occurrence, passengers in the cab, which is contrary to the testimony of Leon Leonard Morrison.” Again, these unverified allegations in the motion for new trial do not prove themselves, and they are not substantiated by the record. “The often stated rule is that one seeking the new trial [because of newly discovered evidence] must show: (1) That the evidence first came to his knowledge since the trial; (2) That it was not owing to want of due diligence that it did not come sooner; (3) That it was so material that it ■would probably produce a different result if the new trial were granted; (4) That it was not merely cumulative; (5) That the object of the testimony was not merely to impeach the character or credit of a witness ; (6) The affidavit of the witness himself should be produced, or its absence accounted for.” State v. Whitaker, 312 S.W. 2d 34, 41; State v. Tompkins, Mo., 277 S.W.2d 587, 593. Defendant failed to make the required showing and the trial court did not err in overruling this assignment of error.

The ninth assignment of error is that the state “produced only one witness as to the corpus delicti, and that witness’ testimony was completely contradicted by the witness, Wesley Halsey and by the witness Patrolman Carl Fordyce.” The assignment of error is inadequate in that it does not purport to show in what respects there is a conflict. However, we have examined the testimony and we find there is no merit to the contention. First, the testimony of the victim of the robbery, Leon L. Morrison, if believed, clearly established the commission by defendant of the offense charged, and assuming that the testimony of the other witnesses was in conflict it was a question for the jury to determine which witness it would believe. Second, we do not agree that the testimony of Morrison was “completely contradicted” by Halsey and For-dyce. In fact, after a careful reading of all the testimony of these witnesses we are of the opinion that there is no conflict except in minor respects which invariably occurs when several months after an occurrence witnesses attempt to relate what they saw. In general, the testimony of the three witnesses are in accord, at least as to the features pertaining to the issue of the commission of the charged offense and whether defendant was the perpetrator thereof.

The tenth assignment of error is that the court erred in permitting “improper argument by the prosecuting attorney [in] attempting to impeach the state’s own witness, Mr. Wesley Halsey.” Although .this assignment is insufficient, we have searched the record and find that Morrison had testified that he was running after the defendant who was attempting to flee after the robbery, and Halsey had testified that they were walking down the street arguing about money. During the closing argument the prosecuting attorney was commenting on the testimony, and said, “Now then, there is the question of were they [Morrison and defendant] walking or were they running,” and “I submit to you there may be some question about that, but you remember he [Halsey] said, T was on the same side of the street, I got my family out of there because I wasn’t sure just exactly what might happen,’ and then he crossed the street * * Defense counsel then objected “on the grounds Mr. Hutson is impeaching his own witness.” T?he remarks of the assistant prosecuting attorney constituted a proper comment on the evidence in the case. Under no circumstance could it be considered to be an improper impeachment by the state of its witness.

The substance of the remaining assignments of error are as follows: The court erred “because of improper instructions submitted by the state” and “given by the court,” arid “because of improper introduction under the habitual criminal act of this defendant’s prior conviction.” None of these assignments comply with the requirements of Supreme Court Rule 27.20, V.A.M.R., and preserve nothing for appellate review. See State v. Riley, Mo., 270 S.W.2d 741.

The amended information is in proper form. The verdict of the jury is responsive to the issues, and the punishment fixed by the court was authorized. The record shows formal arraignment of defendant as to the original information but not as to the amended information, but the record shows that he was tried as though arraigned and a plea of not guilty entered. Defendant and his counsel are shown to have been present throughout the trial, and the judgment and sentence are in due form.

The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.