author: WILLIAMS, Judge. MOREMEN, Judge

text:
    COMMONWEALTH of Kentucky, Appellant, v. Thomas C. BRINKLEY, Appellee.
    Court of Appeals of Kentucky.
    Nov. 30, 1962.
    John B. Breckinridge, Atty. Gen., James G. Osborne, Asst. Atty. Gen., M. R. Mills, Madisonville, for appellant.
    Earle M. Nichols, Madisonville, for ap-pellee.
   WILLIAMS, Judge.

The appellee, Thomas Brinkley, was indicted for obtaining money under false pretenses. Trial was had in the Christian Circuit Court, the jury could not agree, and a mistrial was declared. During the course of the trial the Commonwealth proposed to offer as evidence a recording of a telephone conversation between the appellee and the prosecuting witness and a recording of a conversation between the same two while sitting in an automobile. The trial court refused to permit the introduction of those recordings as evidence.

By this appeal the Commonwealth seeks a certification of law on that issue. The recording of the telephone conversation was made by the sheriff with the aid of the prosecuting witness by attaching a microphone to the telephone receiver located in the prosecuting witness’ home. The second recording was made by the sheriff who, with permission of the prosecuting witness, secreted himself in the trunk of an automobile where he listened to and made a recording of a conversation between appellee and prosecuting witness.

The question of admissibility of recordings made in the manner recited above has not heretofore been determined by this Court. Similar questions have received rather extensive treatment in Federal Courts, however. Of primary consideration in the Federal cases has been the interpretation of the Federal Communications Act of 1934, Title 47 U.S.C.A. § 605, which provides in part:

“ * * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; * * * and no person having received such intercepted communication or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto * * 47 U.S. C.A. Section 605.

Some of the earlier Federal decisions prohibited the use of information gained by interception of telephone communications as well as the introduction of a recording made of the conversation heard by reason of such interception. See Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314, and Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307. It was held that Section 605 forbids any person, unless authorized by the sender, to intercept a telephone message, and further prohibits any person from divulging or publishing the message or its substance. Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298, holds that evidence obtained by wiretapping of intrastate as well as interstate conversation is inadmissible even though one of the parties to the conversation consented to the interception. And in United States v. Polakoff, 2 Cir., 122 F.2d 888, a conversation was recorded from a telephone extension which one of the parties was using. The Court held evidence thus obtained was inadmissible on the ground that each person to a conversation is a sender and conversation may not be used unless consent is had of both parties. It was said in that case that the interception need not be a physical interception of the transmission of the conversation and that the means which is employed has no importance; but it is the “breach of privacy that counts.”

The more recent trend in the Federal opinions, however, has been toward a more strict construction of Section 605. In Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134, the Supreme Court held that a conversation heard on a telephone extension was admissible in evidence and did not violate Section 605. The Court said:

“The clear inference is that one entitled to receive a communication may use it for his own benefit or have another use it for him. The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone.”

In the recent case of Carnes v. United States, 5 Cir., 295 F.2d 598, the United States Court of Appeals, Fifth Circuit, having analyzed the several opinions which preceded it, said:

“Two major principles may be extracted from these cases: First, testimony as to a telephone conversation listened to with the consent of only one of the parties to the conversation is not inadmissible under Section 605. Second, such testimony does not become inadmissible simply because it was recorded by an electrical or mechanical device attached to an extension phone or telephone wiring at the locality of the consenting parties.”

In Carnes, recordings of telephone conversations were obtained by means of an attachment placed on the earpiece of a telephone with the consent of the party at that end of the line. It was said that both the consenting party and the eavesdropper would be free to divulge the contents of the conversation in the court room or elsewhere ; the only function served by the recording was to preserve a permanent and accurate record of the conversation.

There is another line of cases which consider the problem as regards a. possible violation of the Fourth Amendment to the Constitution of the United States. In Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376, it was held that wire-tapping as such does not im volve a search or seizure prohibited by the Fourth Amendment. There wire-taps were made in the basement of a large office building and made without trespass on the defendant’s property. The cases which follow Olmstead, both in time and theory, involve eavesdropping which had not been accomplished by means of an unauthorized physical encroachment within a constitutionally protected area.

In Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, Federal officers placed a detectaphone against an office wall and listened to conversations taking place in the office next door. The Supreme Court declared that did not violate the Fourth Amendment. In On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270, a Federal agent who was acquainted with the accused went into his laundry and engaged him in incriminating conversation. The agent had a microphone concealed on his person which fed into a receiving set operated by another agent outside the building. Testimony of the agent who was outside the building concerning-what he heard was admitted and declared to be no violation of the Fourth Amendment.

In an opinion decided in June 1962, State v. Carbone, 38 N.J. 19, 183 A.2d 1, the Supreme Court of New Jersey certified a matter similar to the one under consideration here. During a raid conducted under a search warrant, a police officer answered the telephone. He was permitted to testify as follows:

“I picked up the phone and said, ‘Hello,’ and the caller said, ‘Pat,’ and I said, ‘Yes.’ He said, ‘Give me Silky Jet at Laurel, five across.’ ”

That Court determined that the Federal rule excluding evidence obtained in violation of the Federal Statute (Section 605) does not apply to the states. That finding is based on the holding of the Supreme Court in Schwartz v. Texas, 344 U.S. 199, 73 S. Ct. 232, 97 L.Ed. 231, in which it was said:

“§ 605 applies only to the exclusion in federal court proceedings of evidence obtained and sought to be divulged in violation thereof; it does not exclude such evidence in state court proceedings.”

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, was considered and found not to be in conflict.

The later expressions of the various courts lead us to the conclusions that a recording made of a telephone conversation by an attachment placed on the receiver of the consenting party to the conversation does not violate the provisions of Section 605; nor is it an unauthorized encroachment within a constitutionally protected area as would be violative of the provisions of the Fourth Amendment; and, finally, the Federal-rule excluding evidence obtained in violation of Section 605 does not apply to the states. Consequently, other factors having been met, the recording made of the telephone conversation between appellee and prosecuting witness is not inadmissible. In like manner the recording of the conversation made in the automobile could not have been violative of Section 60S. See Anno, in 58 A.L.R.2d, beginning at page 1026. Nor does its admission violate the provisions of the Fourth Amendment according to the theory recited in the cases cited above.

However, one of the most recent decisions of the United States Supreme Court hoists a warning flag which should not be ignored. In that case, Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, Federal agents inserted a “spike mike” into a party wall where it came into contact with a heating pipe. The heating system thereby became a giant transmitter of conversations made anywhere within its general area. The Court held that receipt of the messages through the “spike mike” was not an interception within the meaning of Section 605, but was a violation of the Fourth Amendment, the reason being that the eavesdropping was accomplished by means of an unauthorized physical penetration into private premises. It was said:

“We find no occasion to re-examine Goldman here, but we decline to go beyond it, by even a fraction of an inch.”

Having determined that the recordings in question are not inadmissible, we point out that before they may be admitted into evidence a proper foundation must be laid. We note that the Supreme Court of Georgia, in Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga.App. 207, 88 S.E.2d 167, said that a proper foundation for the admission of a recording would consist of (1) a showing that the mechanical transcription device was capable of taking testimony, (2) a showing that the operator of the device was competent to operate the device, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the record, (6) identification of the speakers, and (7) a showing that the testimony elicited was freely and voluntarily made, without any kind of duress. See also Wright v. State, 38 Ala.App. 64, 79 So.2d 66, wherein the Supreme Court of Alabama makes suggestions as to the procedure which might be followed in the event of an objection to the introduction of a recorded statement.

Recordings of conversations made under circumstances recited herein are admissible into evidence provided a proper foundation is first established for their admission.

The law is so certified.

MOREMEN, Judge

(dissenting).

I believe the majority opinion correctly outlines the trend, so apparent from the recent opinions of the various courts, to permit the introduction of evidence obtained by means usually designated as wire tapping. The older cases were firm in the protection of a person’s privacy.

The doctrine of privacy, independent of constitutional guarantees, was advanced rather recently in the development of law— about seventy years ago. This doctrine arose, it seems, from the fact that the steady increase of the population of this country was accompanied, as it must always be, by a decrease in privacy because of a similar decrease in space.

We are now in a period when the population is increasing so fast that the phenomenon has been called “a population explosion.” It seems to me that if space which permits movement is progressively diminished by this increase in population the protection granted by the law should be increased so that at some periods in his day a person will have the feeling that he is alone and protected from sly molestation.

Although other reasons have been assigned, Section X of the Kentucky Constitution and the IV Amendment to the United States Constitution were primarily enacted, it seems to me, for the purpose of granting to a person one place where he would he at least temporarily secure from unwarranted intrusion. This recognition of a right to believe one is temporarily safe has long been a part of our law. Remember the right of sanctuary the church offered even to fugitive criminals in England and other European countries? Our most modern fallout shelters attest to the fact that everyone still desires the right to hope for survival and a place to hide.

The development in the electronic field has been such that one may sit in his living room and hear signals called in a football game two thousand miles away — and the quarterback is not wired for sound. The shotgun microphone which may pick up conversations from a distance of more than two hundred yards becomes more dangerous than the weapon for which it was named when it receives legal approval as a vehicle for transmission of evidence into court.

Where are the ancient safeguards of the oath and the solemnity of the occasion or the trappings of a formal courtroom which warn a witness that now the truth must be told ? Persons engaged in ordinary conversations are not too careful with their facts or even their ideas. If idle conversations are to be trapped, recorded and used against the communicants, no guaranty of truth is obtained.

That, however, does not worry me too much. My concern arises from the fact that we are abandoning a tenet of legal philosophy at a time when it is most needed. When the country is becoming so crowded that it is often difficult to determine where one large city ends and another begins, any concept which attempts to assure privacy should be cherished.

In Kentucky, in this case, we now have the right to retain the philosophy of the old cases which guarded the private rights of man. Instead we have opened the door to the eavesdropper. I believe that Justice Holmes was correct when he dismissed the whole manipulation as being “dirty business.”

I would certify the law contrary to that expressed by the majority.


source: Caselaw Access Project

author: WADDILL, Commissioner.

license: Public Domain

text:
    KENTUCKY UTILITIES COMPANY et al., Appellants, v. FARMERS RURAL ELECTRIC COOPERATIVE CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    Nov. 23, 1962.

      Charles A. Robertson, James S. Welch, Ogden, Brown, Robertson & Marshall, Louisville, Uhel O. Barrickman, Richardson, Barrickman & Dickinson, Glasgow, J. Gardner Ashcraft, Morris Burton, John B. Breckinridge, Atty. Gen., Frankfort, for appellants.
    Philip P. Ardery, Brown, Ardery, Todd & Dudley, Louisville, Cecil C. Wilson, Wilson & Nunn, Glasgow, for appellee.
   WADDILL, Commissioner.

Following a hearing, the Public Service Commission of Kentucky (Commission) dismissed the complaint of the Farmers Rural Electric Cooperative Corporation (Farmers) challenging the right of the Kentucky Utilities Company (K.U.) to serve customers in a residential subdivision within the city of Glasgow. The basis of the Commission’s decision was that K. U. had not only been furnishing electricity for the buildings on the farm from which the subdivision property was taken but had also been serving the city of Glasgow prior to the time the subdivision was annexed into that city.

Farmers brought an action under KRS 278.410 and obtained a judgment directing the Commission to set aside its decision and to reconsider the case. Apparently, the circuit judge was of the opinion that, since the service line which K.U. erected to serve its customers is located near a line previously erected by Farmers, duplication of facilities has resulted. K.U. and the Commission have appealed to this Court.

The record reflects that both K.U. and Farmers have power lines extending into the subdivision. K.U. has a three-phase line along the south edge of the subdivision in order to properly serve such appliances as air conditioners, electric ranges and clothes dryers. Farmers has a single-phase line along the western edge of the subdivision and a three-phase line located approximately one mile from the subdivision. Under these conditions, whether Farmers or K.U. furnishes the service within the subdivision, it is evident to us (as it was to the Commission) that there will necessarily be some duplication of facilities. However, duplication of facilities is only one of the several factors that the Commission must consider in determining disputes of this character.

The record contains no evidence which would justify the conclusion that the decision of the Commission is either unlawful or unreasonable.

The judgment is reversed, with directions to enter judgment sustaining the decision of the Commission.


author: BARRETT, Commissioner. PER CURIAM. STORCKMAN, Judge

text:
    STATE of Missouri, Respondent, v. Chalmer O. DEMAREE, Appellant.
    No. 48650.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1962.
    Rehearing Denied Dec. 11, 1962.

      Morris A. Shenker, Bernard J. Mellman, St. Louis, Joe Welborn, Bloomfield, Harry C. Blanton, Sikeston, for appellant.
    Thomas F. Eagleton, Atty. Gen., Ike Skelton, Jr., Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

A jury has found that in killing his estranged wife Chalmer Demaree was guilty of murder in the second degree. The sufficiency of the evidence to support the finding of second degree murder is not challenged and, therefore, it is necessary to detail only those circumstances illustrative of the two theories of the killing.

Demaree says that as he sat in a rocking chair across the room from his wife he was suddenly aware of a slight commotion and when he turned around his wife was standing in front of the chair in which she had been sitting holding a pistol in both hands. As he turned she said, “ ‘That will be the last present you ever bring up here for those children. * * * Damn you, I am going to kill you.’ ” Demaree says that he “wasn’t really scared” so he held his hands up and said, “Sit down. Can’t we talk this over,” but Mrs. Demaree “started firing.” To “protect my life,” he jumped up, took his 38-caliber revolver from his belt and “started firing right back.” He does not know how many shots he fired but he stopped firing when she fell. The fact was that three bullets struck Mrs. Demaree, one in the left temple, one behind the right ear and one entered her right chest below the clavicle and coursed downward to her lower rib. There was also a bullet hole in the wall above the overstuffed chair. And there were two 32-caliber bullet holes in the south wall about 48 inches above the floor and it was the appellant’s position that these were the shots fired by Mrs. Demaree. The state would have the inference drawn, however, that the appellant also brought the untraceable 32-caliber pistol along (the serial numbers had been destroyed) and himself fired the two shots into the south wall after he killed his wife. The state would also draw the inference from the chest wound and the bullet in the west wall that Demaree fired the first shots as his wife sat in the overstuffed chair and the other two shots into her head after she had fallen to the floor. In these circumstances the appellant of necessity admits that he shot and killed his wife but claims that he did so in self-defense and that he is entitled to a new trial because of the manner in which the court submitted his defense of justifiable homicide.

In the trial of this case there were the usual formal, defining instructions, and there were principal instructions on first and second degree murder and manslaughter. In addition, there was an instruction on “previous good character” and instruction number 10 on self-defense. It is urged that this instruction is erroneous in several respects and that because of its errors the appellant is entitled to a new trial. The principal claim is that the instruction denied to the appellant “the right to act upon appearances.” In the second sentence of the instruction the jury was told that if he “had reasonable cause to believe and did believe that said Christine Demaree was about to take his life or do him some great personal injury, and further, that he has reasonable cause to believe and did believe that it was necessary for him to shoot and kill said Christine Demaree in order to protect himself from such danger, then he ought to be acquitted on the ground of self-defense.” It is pointed out that this phase of the charge does not refer to the right to act on appearances and fails to tell the jury “that even if no real danger existed” he nevertheless, if he believed danger existed, would be justified in acting on his belief and, thereby, the instruction failed to cover the “constituent elements of self-defense” and denied to the appellant the right to act on appearances. It is said that in employing the phrase “to shoot and kill” the instruction is erroneous because it narrowed and restricted his right of self-defense to the single hypothesis that it was necessary “to kill” in order to protect himself and thus there was excluded from the jury’s consideration, in accordance with his testimony, “that he was merely trying to stop her from doing injury to him.” In the last sentence the instruction told the jury that if it found and believed that the appellant shot and killed his wife “unnecessarily” and when he did not have reasonable cause to believe that she was then about to kill him or do him great bodily harm or injury “then there is no defense in this case and you cannot acquit the Defendant on that ground.” It is urged that the quoted language “narrowed and restricted the defendant’s theory of innocence and improperly prevented the jury’s consideration of any other defense to the charge.”

Considerable research has been expended in unearthing the origin of this instruction, but it is undoubtedly a rescript of instruction 4 in State v. Greaves, 243 Mo. 540, 548, 147 S.W. 973, 974. However, in that case instruction 4 was followed by instruction 5 upon the subject of whether the defendant “was justified in acting upon appearances.” There it was urged that the jury should have been told that the appellant had a right to act on appearances “though it might thereafter turn out that the appearances were false.” But the court held that “(the) idea is certainly embodied in the instructions, given.” Moreover, the court said that “The (trial) court would no doubt, have given the additional instruction had the defendant in any way called its attention to it.” In this-case instruction 10 was the only instruction on self-defense and, therefore, plainly could not conflict with any other instruction on that subject as was the fact in State v. Clough, 327 Mo. 700, 38 S.W.2d 36. These and other cases establish that a defendant charged with murder is entitled in self-defense to act on appearances, and, if the evidence justifies it, he is also entitled, if he requests it, to an instruction embodying that right in some form in a modifying instruction. State v. Traylor, 339 Mo. 943, 98 S.. W.2d 628. Here there was no request for an additional or explanatory instruction on any phase of self-defense (State v. Eaton, 75 Mo. 586), and in State v. Traylor it was-said that “even if no real danger existed, yet if defendant had reasonable ground to believe and did believe that it existed” was. “substantially equivalent” to a direction that the defendant had the right to act on appearances. And in State v. Miller, 346 Mo. 846,. 143 S.W.2d 241, “It is not necessary to this defense that the danger should have been real or actual, or that it should have been-impending and immediately about to fall upon him” was also said to be the equivalent of the right to act on appearances. The self-defense instructions in those cases are not similar to instruction 10, nevertheless,, it does say “whether the defendant had reasonable grounds to believe that such danger existed * * * you must determine from' all the evidence in the case.” And, in the absence of a request for further explanation, that language is also the equivalent of the right to act on appearances. The point to this phase of the discussion is that technically the instruction is not erroneous, it does not in terms take away or deny to the appellant the right to act on appearances.

Thus in its terms the instruction is not a misdirection and as a matter of law is not manifestly erroneous in defining self-defense. And, there is a further qualification applicable here, — “While it is unquestioned law, at least in this state, that one may act upon appearances, although they turn out to be baseless, the trial court is not required in every instance to affix that qualification to an instruction for self-defense, but should only give it in a case when it would apply to (the) facts. Here the court’s instructions apply to every phase of the evidence, and there was no appearam.ce of any supposed danger, other than that on which the instructions are based.’' State v. Smith, 125 Mo. 2, 8, 28 S.W. 181, 182.

And so it is here upon the facts, the only “appearance” is that testified to by the appellant and hypothesized in the instruction— that his wife suddenly and without cause produced a gun and “started firing” and therefore when he “started firing right back,” he had “reasonable cause to believe and did believe that said Christine Demaree was about to take his life or to do him some great personal injury.” There was no other circumstance for the appellant to apprehend or act upon, she, according to him, was suddenly firing a pistol, and it was not as if they had first engaged in mutual combat with their fists, or there had been a hidden knife (State v. Constitino, (Mo.) 181 S.W. 1155), and it was not as if he had had reason to apprehend “an attack by some other person or persons” as was the fact in State v. Lowe, (Mo.) 260 S.W.2d 729. In short, as the court said in the Smith case “there was no appearance of any supposed danger, other than that on which the instructions are based,” and in these circumstances the appellant was not as a matter of either law or fact deprived of “the right to act upon appearances.”

In the instructions in which it has .been employed, the phrase “that it was necessary for him to shoot and kill,” or similar language, has also had a rather curious history. In State v. Lewis, 248 Mo. 498, 154 S.W. 716, there was an affray at a country church and the deceased had struck the defendant with his fists before he was shot. A new trial was granted on other grounds, but the court suggested that upon another trial the language “to shoot and kill to protect himself from such apprehended danger” be changed to read “that it was necessary for him to use his pistol in the way he did to protect himself from such apprehended danger * * * although such shooting resulted in the death of the said James Edsett.” (Italics by the court.) Four years later, in State v. Swearengin, 269 Mo. 177, 190 S.W. 268, the phrase “to shoot and kill” was again objected to and the court said “this complaint is more specious than real.” The court called the suggestion in State v. Lewis “a circumlocution,” and said that when a homicide is accomplished by the intentional use of a deadly weapon the defendant “ought not to be heard to bottom reversible error upon the employment by the trial court of a direct expression of the result of the use of such weapon rather than of its periphrastical equivalent.” Then the court proceeded to recommend as a “little fairer” form the self-defense instruction set out in State v. Thomas, 78 Mo. 327, which on this point said “to use his knife in the way he did.” Still later, in State v. Goodwin, 271 Mo. 73, 195 S.W. 725, there was a rough and tumble fist fight and the use of “pump handles” and the court said that both the Lewis and Swearengin cases had criticized the use of “to shoot and kill” even when a deadly weapon was employed. And in that case, because the jury could find that the defendant was neither afraid of being killed nor believed it necessary to kill, it was held that the instruction failed to give him the benefit of some purpose he might have entertained of disabling his antagonist without killing him and, therefore, he was entitled to a new trial. In State v. Sudduth, 331 Mo. 728, 55 S.W.2d 962, the instruction omitted the words “to kill” and said merely “at the time he stabbed Haver Jenkins.” It was objected, as no doubt it would have been objected here had the words been omitted, that the omission of “to kill” deprived the defendant of “the right to kill Jenkins, as well as to stab” him. But the court was of the opinion that the jury would understand that the right to stab with a knife in self-defense necessarily included the right to kill.

But here the specific objection is that the phrase “and to kill” restricted and narrowed his defense, and before he could be acquitted on that ground the jury “must find that the defendant found it necessary to shoot and kill,” when he was entitled to be acquitted if the jury found, as he claimed, that he did not shoot his wife “for the purpose of trying to kill her but that he was merely trying to stop her from doing injury to him.” It is true that the appellant said that he loved his wife and did not intend to kill her, but the fact remains that he came armed with a 38-caliber revolver, that he fired four times and three of the bullets struck her head and chest and the admitted fact was that he did “shoot and kill” her. And again in these circumstances, in the absence of a request or an offer of explanatory or qualifying instructions, it is not apparent that the instruction unfairly narrowed or restricted his right of self-defense and is, therefore, reversibly erroneous.

And likewise, in various forms of self-defense instructions, the clause that if the defendant “shot and killed the deceased, * * * unnecessarily, * ⅜ * then there is no defense in this case and you cannot acquit on that ground,” has had a checkered career. In State v. Banks, 258 Mo. 479, 167 S.W. 505, it was held that this language in an instruction was erroneous in that it too deprived the defendant of the right to act on appearances and thereby virtually destroyed the right of self-defense. But that is not the objection made to this particular language in the instruction, and in the Banks case there were other instructions on self-defense and this particular phrase “nullified the other portions of said instructions.” Furthermore, in this case, the phrase as quoted above does not stand alone, where the asterisks appear and following the word “unnecessarily” there is the further phrase “and, when he did not have reasonable cause to believe that said Christine Demaree was then about to kill him or do him great bodily harm or personal injury, then there is no defense in this case * * In State v. O’Leary, (Mo.) 44 S.W.2d 50, 54, it was said that the latter quotation qualified the word “unnecessarily” and therefore “The instruction only denies defendant the right of self-defense if he shot unnecessarily and also without reasonable cause to believe it was necessary,” and so was not erroneous. And in State v. Eaton, 355 Mo. 164, 195 S.W.2d 457, it is said that the word “unnecessarily” was qualified by “and when he did not have reasonable cause to believe” and therefore did not erroneously deprive the defendant of the right to act on appearances.

Here the objection is not that he was deprived of the right to act on appearances, the specific objection is that this particular language “precluded the jury from finding the defendant not guilty under any other possible theory of innocence.” It is said that under the principal instructions, murder and manslaughter, the jury may have believed that the appellant was not guilty by reason of some other failure of proof on the part of the state, such as that “the deceased did not die by reason of the wounds inflicted upon her by the defendant or that the killing of the deceased was accidental, or that there was some other defect in the state’s case.” True enough the jury by a general verdict might have found the defendant not guilty for a variety of reasons, but since the shooting and killing are admitted, it is not apparent that there were any other defenses or any other “theory of innocence.” There is no evidence of accidental shooting and admittedly Mrs. Dem-aree died because the appellant shot her. And the second degree murder instruction required the jury to find that the appellant shot Christine “then and there and inflicting upon the said Christine Demaree a mortal wound and from said mortal wound, if any, the said Christine Demaree did upon the same day die * * If the appellant thought that there were any other theories ■of innocence other than justifiable homicide hy reason of self-defense the fact was not called to the court’s attention and there was no offer of a qualifying instruction, and the instruction, correct as far as it went, was not reversibly erroneous for the reason now advanced.

While, in the circumstances of this case, this particular instruction is not demonstrably prejudicial for the reasons advanced, there should be a caveat, as all the cases indicate, that it is not recommended for general use. This belaboured effort, in considering that which should in fact be a comparatively simple matter, is sufficient to indicate that something is amiss. There is of course no formula applicable to all self-defense situations, .but a generally acceptable instruction fairly submitting self-defense and at the same time obviating these and similar commonly urged objections is indeed a possibility in the hands of a thoughtful craftsman.

In connection with the self-defense instruction, the appellant has also briefed and argued the point that the court erred in giving instructions 8 and 9, murder in the second degree and manslaughter, and several reasons are advanced as demonstrating that these errors entitle him to a new trial. The reasons set forth in the brief, however, are much broader than the motion for a new trial and are not open questions in this court. State v. Davis, (Mo.) 251 S.W.2d 610. In his motion for a new trial the objection was that these instructions conflicted with instruction 10 and were erroneous in that they did not advise the jury that if he acted in self-defense he would not be guilty of either murder or manslaughter. In support of his claim the appellant has cited a line of cases in which it has been established that in felonious assault a principal instruction must directly exclude self-defense. The reason usually given is that “An instruction which purports to cover the whole case and entirely ignores a defense (as self-defense) supported by evidence is erroneous and constitutes reversible error.” State v. Winn, (Mo.) 324 S..W.2d 637, 642, and the cases there reviewed. But the rationale of those cases is not applicable to second degree murder, malice aforethought is an essential ingredient of second degree murder and necessarily excludes and is inconsistent with the very idea of self-defense. “It is therefore not error to fail to refer to self-defense in an instruction on murder in the second degree.” State v. Lewis, 248 Mo., l. c. 505, 154 S.W., l. c. 719. Instruction 9 defined manslaughter as “the killing of a human being not herein declared to be murder or excusable or justifiable homicide,” and then “justifiable homicide” was defined and there was also the separate instruction on self-defense, hence the manslaughter instruction was not erroneous in failing to further exclude self-defense. State v. Gore, 292 Mo. 173, 186, 237 S.W. 993, 996.

The defendant produced four witnesses who testified to his good reputation as a peaceable, law-abiding citizen. After the fourth witness had testified the court announced that further character witnesses would not be permitted, that there was a court rule limiting such proof to three witnesses. The defendant then made an offer of proof and proposed to call six additional witnesses, announcing that it would not take more than five minutes with each witness. At this juncture the prosecuting attorney announced that further character testimony was cumulative and repetitious, and for that reason the court sustained the objection. It is now urged that the court erred in thus limiting the number of witnesses to the appellant’s good character because the evidence was vital in a “capital case on the issues of whether the defendant or the deceased was the aggressor, and whether the defendant under the circumstances had reasonable cause to shoot at the deceased.”

The good or bad reputation of a witness is a collateral issue and the trial court has a wide discretion in limiting the number of witnesses on that issue. State v. Miles, 253 Mo. 427, 161 S.W. 766. But here the witnesses were not testifying to the reputation of an ordinary witness, they were testifying to the “good character” (V.A.M.S. Sec. 546.070(4)) of the defendant for a specific trait to show the improbability of his committing the crime charged and in substantive proof of his innocence (22A C.J.S. Criminal Law § 676, pp. 699-700; annotations 10 A.L.R. 8, 68 A.L.R. 1068), and any court rule limiting the number of witnesses should be accordingly modified and administered. 23 C.J.S., Criminal Law § 1042, pp. 1178-1179. Even so, the problem here is whether there has been an intrusion on the substantial right to a fair trial.

In the trial of this case the state did not vigorously cross-examine the defendant’s character witnesses, any questions were perfunctory, and one witness was asked whether he was a friend of the defendant. The state did not offer any witnesses to the appellant’s bad reputation and thus there was no unfair advantage to the state (St. Louis, Memphis & S. E. Ry. Co. v. Aubuchon, 199 Mo. 352, 97 S.W. 867, 9 L.R.A., N.S., 426), and there was no problem of a denial of rebuttal testimony. Markham v. Herrick, 82 Mo.App. 327. The fact of the matter was, as a separate issue, there was no question as to the defendant’s previous reputation or good character, it was all but conceded and it may not be said that there was such manifest abuse of discretion as to demand the granting of a new trial. State v. Ring, 346 Mo. 290, 304, 141 S.W.2d 57, 64; State v. Emma, 324 Mo. 1216, 26 S.W.2d 781.

And in this connection, since there was evidence of good character, the court was required to (S.Ct.Rule 26.02, V.A. M.R.) and did instruct the jury, “if proven to your satisfaction,” that the appellant’s previous good character “ought to be considered by you, in passing upon his guilt or innocence.” It is now obj ected that the language “if proven to your satisfaction” unduly restricted and limited “the right of the jury to consider evidence of good character and improperly required the defendant to establish that fact to the satisfaction of the jury and erroneously placed upon the defendant the burden of showing such fact.” It is not known, of course, why this particular form of good character instruction with the unfortunate phrase “if proven to your satisfaction” was given. It was undoubtedly copied from a text which in turn extracted it from a series of instructions set out in State v. Brooks, 92 Mo. 542, 556, 5 S.W. 257, 262, 330, in which it was neither attacked nor approved nor disapproved. In any event, it is not recommended and future draftsmen would be well-advised to take into consideration cases decided since 1887 and particularly the definitive study of good character instructions in 10 A.L.R. 8. It is possible that it is subject to the construction the appellant attributes to it and is therefore technically erroneous, but it does not follow that it is manifestly prejudicial and demands the granting of a new trial.

There is in fact no direct limitation upon the jury’s considering the defendant’s good character, and that upon the substantive fact of guilt or innocence. And, important as the subject of good character is, it is not as if the burden of proof upon guilt or innocence of the substantive offense had been misplaced (State v. Strawther, 342 Mo. 618, 116 S.W.2d 133), or as if there had been a misdirection as to the burden of proof as to self-defense (State v. Malone, 327 Mo. 1217, 39 S.W.2d 786; State v. Robinson, (Mo.) 255 S.W.2d 798), and neither is it as if the instruction had misdirected the jury as to the burden of proof on insanity. State v. Swinburne, (Mo.) 324 S.W.2d 746. Good character is a substantive fact to be considered upon guilt or innocence, but it is not a defense to the crime, — it is but a circumstance the jury is to consider in determining the ultimate issue. As indicated, in this case, fortunately, the appellant’s prior good character was not a contested issue, it was all but conceded and it would he most unrealistic to say that this isolated phrase, “if proven to your satisfaction,” confused, misled or misdirected the jury in any manner and thereby infringed the appellant’s right to a proper statement of the law or to a fair trial. While they too are not recommended, it has been said that somewhat similar language in good character instructions, “if established” or “you are satisfied beyond a reasonable doubt,” was not reversible error. State v. Nienaber, 347 Mo. 541, 148 S.W.2d 537; State v. Lasson, 292 Mo. 155, 238 S.W. 101. In short, upon this record and its particular circumstances, the appellant is not entitled to a new trial for the reasons presently advanced against instruction 11.

Furthermore, there is no error with respect to those matters the court is required to consider under Supreme Court Rule 28.02, and the judgment is affirmed.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court en Banc.

Affirmed.

WESTHUES, C. J., and LEEDY, DALTON and HYDE, JJ., concur.

STORCKMAN, J., dissents in separate opinion filed.

EAGER and HOLLINGSWORTH, JJ., dissent and concur in separate dissenting opinion of STORCKMAN, J.

STORCKMAN, Judge

(dissenting).

I regret that I am unable to concur in the majority opinion. I cannot do so because I believe there is such an accumulation of errors that the aggregate spells out a case of legal prejudice and a denial of a fair trial.

It is unnecessary to rehash the deficiencies found to exist in instruction No. 10 on self-defense and the assignments of error made as to instructions numbered 8 and 9. They are sufficiently disclosed by their discussion in the majority opinion. But the ruling of the court limiting the number of character witnesses and the instruction on previous good character in my opinion demonstrate decisively that the bounds of fair trial were exceeded.

As the majority opinion recognizes, there is a distinction between evidence relating to the character and reputation of an ordinary witness and that of the defendant in the case. The relevant character trait of an ordinary witness is his reputation for truth and veracity which is a collateral issue. The evidence of the defendant’s “good character” relates to the essential traits of character involved in the offense for which he is on trial. State v. Robinson, 344 Mo. 1094, 130 S.W.2d 530, 531 [2], Such evidence goes to “the improbability of his committing the offense charged” and is substantive proof of his innocence. State v. Nienaber, 347 Mo. 541, 148 S.W.2d 537; State v. Robinson, 344 Mo. 1094, 130 S.W.2d 530; State v. Taylor, 293 Mo. 210, 238 S.W. 489; 22A C.J.S. Criminal Law § 676, p. 699. An instruction on the defendant’s “good character” is specifically required. Section 546.-070(4). Thus, by statute the good character of the accused is one of the issues in the case on which it is mandatory that an instruction be given for the jury’s information in giving their verdict.

I doubt the validity of a court rule which arbitrarily limits the number of the defendant’s character witnesses to a specific number. In State ex rel. Plummer v. Gideon, 119 Mo. 94, 24 S.W. 748, it was held that a rule of court limiting to fifteen the number of subpoenaes for witnesses to which one accused of murder is entitled as of right is void as being in violation of what is now § 18a, Art. I, Constitution of Missouri, V.A.M.S., providing that the accused shall have process to compel the attendance of witnesses in his behalf.

In the present case the trial court indicated reliance upon a court rule or custom in limiting the number of witnesses. In ruling, he stated: “Ordinarily we only permit three, and we have permitted four.” The general rule stated in 23 C.J.S. Criminal Law § 1042, p. 1178 is: “Generally, in restricting the number of witnesses, care must be exercised to avoid an undue intrusion on the substantial right of accused to a fair trial. Accordingly, it has been held that this discretion of the court does not extend to limiting the number of witnesses at the commencement of the trial before the exigencies of the case are developed; that the court should not have a rule or make a rule in advance of the ad-duction of evidence limiting the number of witnesses; and that the number of witnesses that may be permitted to testify should be governed by the circumstances in each particular case.” See also 22A C.J.S. Criminal Law § 677(1), p. 709.

In State v. Mahan, Mo., 267 S.W. 866, the attack was upon the reputation of the prosecuting witness but the opinion points up that there is no statutory limitation of the number of witnesses stating, 267 S.W. 867-868[2]: “It is true the court has no right to limit the number of witnesses which the defendant may summon in his behalf. State ex rel. Plummer v. Gideon, 119 Mo. 94, 24 S.W. 748, 41 Am.St.Rep. 634. Section 4193, R.S. 1919 [now § 550.170, RSMo 1959, V.A. M.S.], does not limit the number of witnesses which may be produced in proof of any specific facts, but simply limits the assessment of costs in such case. However, the witnesses were not offered to testify to any fact directly affecting the alleged crime, but as to the collateral matter of the reputation of the prosecuting witness.” See also State v. Bowerman, 140 Mo.App. 410, 124 S.W. 41.

If the circumstances of a particular case justifies limiting the number of witnesses to the good reputation of the accused, then I think that after the particular situation has developed defendant’s counsel should be advised in sufficient time so that they may select the witnesses they desire to offer. It is common knowledge that lawyers sometimes choose to close the testimony in their case with what they consider to be their best witnesses. In the present case two police officers were among those excluded by the ruling.

The holding on this point in the majority opinion opens the door to further erosion of defendant’s rights in this regard. I consider this and the following crossroad points on which the court has taken the wrong way.

As to the instruction on good character, I consider the use of the phrase “if proven to your satisfaction” to be prejudicially erroneous. State v. Adams, Mo., 355 S.W. 2d 21 (No. 48,805, also decided March 12, 1962) held it was reversible error for an instruction to require the defense of insanity to be “established by the evidence to your reasonable satisfaction.” Good reputation is no more a collateral issue than insanity. Both of these issues bear directly upon the guilt or innocence of the defendant. I fully concur with the Adams decision and consider the error in this case to be much more grievous in that evidence of good character need only create a reasonable doubt in order to establish the defendant’s innocence whereas insanity is an affirmative defense which the defendant has the burden of proving by the preponderance of the evidence. In this regard the majority opinion conflicts with the Adams case and is out of harmony with other decisions of this court.

The majority opinion in this case tends to destroy or at least impair the salutary effect of the Adams decision.

The two cases relied upon by the majority opinion for “somewhat similar language in good character instructions” are not controlling or persuasive. In State v. Nienaber, 347 Mo. 541, 148 S.W.2d 537, the words were “if established” as contrasted with “if proven to your satisfaction” in the instant case. The words “to your satisfaction” were not in the Nienaber instruction and the blow was not softened by reasonable satisfaction as in State v. Adams which was nevertheless reversed. In State v. Lasson, 292 Mo. 155, 238 S.W. 101, the term “you are satisfied beyond a reasonable doubt” was not used in the same connection; it dealt with the guilt of the defendant on all of the evidence and not with proof of the defendant’s good reputation to the satisfaction of the jury. In fact the first part of the Lasson instruction has none of the objectionable language because it refers to “the testimony relating to his character” much as if the first part of the present instruction had said “the evidence relating to the previous good character of the defendant for being a peaceable and law-abiding citizen” which would harmonize it with the latter part of the instruction and remove the temptation to use the phrase “if proven to your satisfaction” or similar objectionable language.

For these reasons I respectfully dissent.


author: WESTHUES, Chief Justice. PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Sammy Aire TUCKER, Appellant.
    No. 49105.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1962.
    Rehearing Denied Dec. 11, 1962.

      Charles M. Shaw, L. L. Bornschein, Clayton, for appellant.
    Thomas F. Eagleton, Atty. Gen., Howard L. McFadden, Asst. Atty, Gen., Jefferson City, for respondent.
   WESTHUES, Chief Justice.

Defendant Sammy Aire Tucker was by amended information charged with murder in the first degree. The information further alleged that Tucker had previously been convicted on a charge of robbery in the first degree. Sec. 556.280 as amended Laws 1959, V.A.M.S. A trial by jury in the Circuit Court of Cape Girardeau County, Missouri, resulted in a verdict of guilty as charged. The trial court heard evidence on the question of a previous conviction and found that defendant had been so convicted in the State of California in January, 1961. The court fixed Tucker’s punishment at death. A motion for new trial was filed and overruled. From the judgment entered, an appeal was taken to this court.

The offense was alleged to have been committed in the County of Cape Girardeau on March 10, 1961. The victim was Donald Crittendon, a police officer of the City of Cape Girardeau, Missouri.

Tucker did not file a brief in this court. An attorney of defendant’s own choosing defended him at the trial and filed a lengthy motion for new trial and a notice of appeal. Tucker was granted leave to appeal as a poor person.

Since no brief was filed on defendant’s behalf, it becomes the duty of this court to consider all points properly preserved by the motion for new trial. State v. Vincent, Mo., 321 S.W.2d 439. In this motion, the following points were preserved for review: In point 1, defendant assigns five separate reasons to sustain his contention that the court erred in overruling his motion for a continuance.

In point 2, defendant says the court erred in overruling his objection to the panel of jurors; that of the 93 on the panel only 3 were of the female sex; that of the 56 jurors summoned on voir dire, 36 were residents of the town of Cape Girardeau.

In point 3, it is stated that the defendant was brought to the courtroom handcuffed and shackled in chains in the presence of the jury panel and that police were present in the courtroom with weapons exposed.

In assignments 4, 5, 6, 7, 8, 9, and 15, defendant complains of rulings on the admission and rejection of evidence.

In assignments 14 and 16, defendant says the trial court erred in not instructing on “aiding and abetting” and on the offense of manslaughter.

Finally, in assignment 17, defendant says the trial court should have directed a verdict of not guilty.

The evidence on the part of the State and the defendant conflicted only on a few points. The following is what the evidence shows to have occurred: On the night of March 10, 1961, at about 9:30 o’clock, two men were seen loitering about the premises of the Town Plaza Shopping Center located west of Cape Girardeau, Missouri, near Highway 61. It was closing time for the stores. Police were notified. One of the men (who was “loitering”) was seen to enter a car. When the police arrived, a car thought to have been the same car as the one entered by one of the two above-mentioned men was pointed out to the police. This car was being driven north on Highway 61. Donald Crittendon, in a police car, and other police officers in another car followed the car as it went north on Highway 61. The police proceeded with red lights flashing and sirens sounding. After a short chase, the car being followed by the police stopped on the side of Highway 61. Crittendon stopped his car to the rear of the pursued car, got out of his car, and walked up to the car ahead. The occupants of such car proved to be the defendant and one Thompson. The other police car, meanwhile, had stopped on the opposite side of the highway. Crittendon asked the defendant, who was in the driver’s seat, for his driver’s license. After an exchange of a few words, Crittendon asked the defendant to get out of the car. As the defendant was in the act of getting out, Crittendon was shot by one of the occupants of the car. Other shots followed, with the defendant receiving a number of bullet wounds and officers other than Crit-tendon were also wounded. Defendant and Thompson then left in their car. Critten-don was taken to a hospital where he died on March 21, 1961, as a result of a gunshot wound suffered at the point heretofore described. Defendant and Thompson were later arrested.

Defendant, testifying in his own defense, admitted that the police officers were in uniform and that he knew Crittendon and the other officers present were police officers. In his evidence, defendant made no claim that the police officers drew guns or in any way made any demonstration to harm him or Thompson prior to the time that Crittendon was shot. Defendant testified that he did not shoot Crittendon but that as he was getting out of the car, Thompson reached over and shot Critten-don and then threw the gun to him, the defendant, but that he did not, in fact, use the gun.

There was positive evidence introduced by the State that it was the defendant and not Thompson who shot Critten-don. Shannon Kelly, a police officer, testified he was across the highway only 20 feet from where Crittendon was talking to the defendant. Note his evidence as to what occurred:

“Q (By Mr. Strom) Mr. Crittendon said something?
“A Yes.
“Q What happened?
“A The driver immediately sort of backed out of the car and the minute he came out of the car he thrust his hand then. Your — on your Oldsmobile car you have — on the ’55 or ’56 model you have a wrap-around windshield. Between the windshield and door he immediately thrust his hand out there and shot the officer in the stomach.
“Q What did Crittendon do as the driver of the vehicle got out?
“A He backed north of the door because the door came open between them.
“Q Which direction was Crittendon facing as he backed north?
“A He was facing south.
“Q Now you say the man reached over this place in the door and what happened at that point ?
“A That is when he shot the officer standing there.
“Q Did you see the shot fired?
“A Yes, sir.
“Q How far away were you at that point?
“A Just across the highway.
“Q About how wide is that highway?
“A Twenty feet.
“Q Did you observe the driver of that Oldsmobile?
“A Yes, sir.
“Q Would you recognize him again ?
“A Yes, sir.
“Q Is he here in the courtroom?
“A Yes.
"Q Where is he?
“A That is the gentleman sitting there (indicating).
“MR. STROM: Let the record show that the witness has pointed to the defendant.”

Robert F. Ross, an auxiliary police officer, testified that he was with officer Kelly at the time of the shooting. Note his evidence as to whether defendant shot Critten-don :

“Q You say the driver handed Crit-tendon a pink piece of paper. When did that happen ?
“A After Officer Crittendon walked to the door he asked the man something and then there was a pink piece of paper handed out of the — the glass was down and he handed a pink piece of paper out to Officer Crittendon and he —Officer Crittendon looked at the pink piece of paper and he said something again and the door opened.
“Q What happened when the door opened ?
“A When the door opened, the man on the driver’s side stepped out and placed one foot on the ground between the door and the car, and in the opening part he stuck his arm over there and placed the weapon down to Officer Crittendon’s stomach and fired.”

Defendant admitted that he was the driver of the car heretofore mentioned in the quoted portion.

The State introduced further evidence that the defendant, previous to the trial, voluntarily admitted that he shot Crittendon.

It may be well at this point, having just reviewed the evidence, to dispose of points 14, 16, and 17. We rule that there was positive evidence to support a finding that the shooting of officer Crittendon by the defendant was unjustified and without any provocation or excuse. In fact, defendant did not contend otherwise at the trial. He simply denied the shooting and claimed Thompson was the guilty party. The State’s evidence was ample to support a finding that it was the defendant who fired the fatal shot. So, the trial court did not err in overruling defendant’s motion for a verdict of not guilty.

There is no merit to points 14 and 16. A reading of the evidence, the substance of which we have stated supra, demonstrates that no instruction on manslaughter or aiding and abetting was required.

Defendant contends that the trial court should have granted a continuance. The original information was filed on March 28, 1961. An amended information was filed on April 20, 1961. On April 12, the trial court appointed two attorneys to defend Tucker. These attorneys, with leave of court, withdrew from the case. On May 1, 1961, Charles M. Shaw entered his appearance as attorney for the defendant. On June 9, 1961, defendant filed a motion for continuance to the September term of court. On June 19, Leonard Bornschein appeared as counsel for defendant on behalf of Mr. Shaw. The motion for continuance was overruled and the cause was “continued on setting for June 26.” The sheriff was ordered to call “all jurors and alternates and an additional fifty persons for jury duty.” On June 26, an application was filed to disqualify the regular judge, the Honorable W. Osier Statler. This application was sustained and the cause was set for trial for July 10, 1961. By order of the Supreme Court, the Honorable Ray Weight-man, Judge of the Fourth Judicial Circuit, was designated to try the case. On July 17, 1961, Judge Weightman, presiding, the case was called for trial. The record shows that the State and the defendant answered ready for trial. The case was tried before the court and a jury on July 17 and 18 and a verdict of the jury was received by the court on July 18, 1961.

It may be noted that the defendant did, in fact, obtain a continuance by reason of delays and the disqualification of the regular judge. Furthermore, the record shows that no request was made for further continuance after Judge Weightman was designated to try the case. As above mentioned, both the State and the defendant answered ready for trial on July 17. In the circumstances, the defendant’s contention that the court erred in overruling the motion for continuance is without merit.

Defendant’s complaints in assignments 2 and 3 have no support in the record. No objection was made to the panel of jurors called for the trial for July 17. The record does not show the number of jurors summoned from the various townships nor does the record show the number of male or female jurors. So, also, with the complaint that the defendant was taken to the court handcuffed and that the police officers were present in court with weapons exposed. The record does not show these facts and the record does not show the subject to have been mentioned by counsel for the defendant. Allegations in a motion for a new trial, to have merit, must be supported by the record. They do not prove themselves. State v. Short, 337 Mo. 1061, 87 S.W.2d 1031, l. c. 1034(9-11); State v. Cantrell, 320 Mo. 248, 6 S.W.2d 839, l. c. 841(6).

Assignments numbered 4 to 9 inclusive and 15, in the motion for new trial, must be considered in a group. A number of them standing alone do not present any question for review and some are duplications. In assignment 4, defendant complains that a witness was permitted to testify that State’s Exhibit 2 was a photograph of Thompson and that the witness had seen Thompson at the Shopping Center. Defendant says that such evidence tended to show defendant guilty of an offense for which he was not on trial. What offense, defendant did not say. We do not find that the evidence indicated or tended to show any other offense to have been committed. Defendant admitted being with Thompson. In fact, he testified that Thompson did the shooting. The complaint in assignment 15 pertains to the documents which were certified copies of papers showing a prior conviction. Complaint is made that the documents did not prove that the defendant was the same person as the one shown to have been convicted. Defendant, while testifying at the trial, admitted that he committed the prior offense and that he was the person described in the documents. It is apparent that there is no merit in defendant’s contention.

In assignment 5, defendant says the court erred in permitting the prosecutor to cross-examine defendant on matters not covered on direct examination. Defendant testified at length and detailed the circumstances of the shooting. We have not found wherein the prosecutor violated the rule and defendant did not point out wherein the cross-examination went beyond the scope of the direct examination. The point is ruled against the defendant.

In points 6, 7, and 8, defendant complains that the State was permitted to introduce evidence in rebuttal which was, in fact, evidence in chief. Defendant testified he did not shoot Crittendon; that it was Thompson; further, that Thompson threw a gun to the defendant but that he did not use it. The State, in rebuttal, offered evidence that the defendant made statements before the trial that he did shoot Crittendon. This was proper rebuttal. Complaint is made that this evidence should not have been admitted because defendant was threatened and beaten. Police officers testified that the statements were made after defendant had been advised of his rights and that Tucker was not mistreated in any way and no promises or threats were made. The question of whether the statements made by the defendant were voluntarily made was submitted to the jury. No complaint was made that the instruction was improper. There was no error in admitting the evidence in rebuttal.

In assignment 9, defendant contends that the trial court should have held an interlocutory hearing outside the presence of the jury on the question of the admissibility of the defendant’s incriminating statements. This was not mandatory. The defendant at the trial did not object to the procedure nor did he ask that the matter should first be heard out of the presence of the jury. State v. Malone, Mo., 301 S.W.2d 750, l. c. 758(22); State v. Holliday, 353 Mo. 397, 182 S.W.2d 553, l. c. 554(4).

Assignments 10 to 13 inclusive do not present any question for review.

We have examined and considered all points preserved in the motion for new trial and find no ruling prejudicial to the rights of the defendant. We have also examined all matters required by Supreme Court Rule 28.02, V.A.M.R. and find no error therein.

The judgment of the trial court is hereby affirmed.

The date of defendant’s execution is hereby set for Wednesday, January 9, 1963.

All concur.

On Motion for Rehearing

PER CURIAM.

Appellant did not file a brief when this case was submitted. In our opinion, we reviewed all of the assignments of error contained in the motion for a new trial as well as all matters required to be reviewed under Supreme Court Rule 28.02, V.A.M.R. Appellant has filed a motion for rehearing wherein he has only one complaint to make. He claims that the evidence of a previous conviction was insufficient for the application of the second offense statute, Sec. 556.280, V.A.M.S.

It is claimed that the information did not allege “nor (was) evidence adduced in support thereof, that such sentence was complied with, either by pardon, parole or compliance therewith: * * In so contending, appellant has overlooked the fact that the statute, Sec. 556.280, supra, was amended by the legislature in 1959. See Cumulative Annual Pocket Part, Vol. 40, V.A.M.S., p. 10. The statute, on the point in question, as amended reads as follows: “If any person convicted of any offense punishable by imprisonment in the penitentiary, or of any attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary, shall be sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor, and is charged with having thereafter comitted a felony, he shall be tried and if convicted punished as follows:

The record in this case showed that the defendant Tucker had previously been convicted of robbery, sentenced, and imprisoned. That is all the section of the law requires.

The motion for rehearing is overruled.


author: STOCKARD, Commissioner. PER CURIAM.

text:
    Leon BERRY, Appellant, v. Johnnie L. CHITWOOD and Carrie Chitwood, his wife, Respondents.
    No. 48451.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1962.

      J. Ben Searcy, Eminence, Hogan & Hogan, Robert E. Hogan, West Plains, for appellant.
    Dorman L. Steelman, Salem, for respondents.
   STOCKARD, Commissioner.

Leon Ber.ry has appealed from a judgment dismissing his petition with prejudice in which he alleged that a prior judgment was void and constituted a cloud on his title to a tract of land in Reynolds County. Portions of this opinion are taken from a previously prepared opinion without the use of quotation marks.

Accepting as true the allegations in the petition, we have these facts'. In April 1954 plaintiff instituted an action against the defendants, Johnnie L. and Carrie Chit-wood, to quiet title to a described tract of land in Reynolds County. There was personal service on the defendants and an answer was filed by them. On September 8, 1955 the court entered judgment quieting title in the described land in plaintiff, and the court decreed that defendants had no right, title or interest in the property. No after trial motions were filed and no appeal was taken from the judgment. On October 20, 1955, more than thirty days after the entry of the original judgment, the trial court entered a second judgment in the case. The new judgment .recited that the judgment rendered on September 8, 1955 “is set aside by agreement of parties hereto, and a new Judgment is entered.” The new judgment purported to quiet title to the described land in plaintiff “except approximately 6 to ten acres, approximately 400 feet wide, which is now under fence and which is being held adversely.”

On June 14, 1960, more than four years after the entry of the October 20, 1955 judgment, plaintiff instituted this proceeding in two alternative counts to vacate and set aside that judgment, but plaintiff admits that the first count is of “no consequence on this appeal.” In the second count the facts are alleged as previously stated, and further that the judgment of September 8, 1955 “was the full, true and correct judgment” of the court made without clerical error or misprision, and that there was no written memoranda in the files indicating that the judgment was not correct in every respect. It is also alleged that the judgment or decree of October 20, 1955 was rendered “more than 30 days after the entry of the previous judgment,” and that the court had no jurisdiction to enter it. Plaintiff prayed that the judgment of October 20, 1955 be declared null and void and that it be canceled.

Defendants’ motion to dismiss the petition on the ground that it “fails to state a cause of action against the defendants” was sustained, and in its order the trial court recited that “in view of the provisions of Civil Rule 74.32, and the principles of res judicata, plaintiff is entitled to no relief since more than three years have elapsed since rendition of the judgment of October 20, 1955.”

Civil Rule 74.32, V.A.M.R., provides that judgments “shall not he set aside for irregularity, on motion, unless such motion be made within three years after rendition thereof.” However, the general .rule, with certain exceptions (such as motions for amendment nunc pro tunc, motions for irregularities patent, motions in the nature of coram nobis, and motions pertaining to child custody and alimony as authorized by Section 452.070 RSMo 1959, V.A.M.S.), is that when no after trial motions are filed, upon the expiration of thirty days the judgment becomes final and beyond the reach of the trial court to change, amend or modify on its own motion or the motion of one of the parties. Thompson v. Hodge, Mo.App., 348 S.W.2d 11; Schenberg v. Schenberg, Mo.App., 307 S.W.2d 697; Snyder v. Christie, Mo.App., 272 S.W.2d 27; Rosbrugh v. Motley, Mo. App., 216 S.W.2d 165; State ex rel. Tem-pleton v. Seehorn, Mo.App., 208 S.W.2d 789. See also Section 510.370 RSMo 1949, V.A.M.S. and former Supreme Court Rule 3.25 effective at the time of the entry of the judgments in this case, and Civil Rule 75.01 now applicable. Under such circumstances an attempt by the court to change, amend or modify the judgment is of no effect, and a judgment resulting from such attempt is void and subject to a collateral attack. Smethers v. Smethers, Mo. App., 263 S.W.2d 60. A void judgment is not an “irregularity” within the meaning of Civil Rule 74.32, V.A.M.R., and that rule does not preclude a proper proceeding to declare a judgment void after the three-year period. Wenzel v. Wenzel, Mo.App., 283 S.W.2d 882; Simplex Paper Corporation v. Standard Corrugated Box Co., 231 Mo.App. 764, 97 S.W.2d 862; Smethers v. Smethers, supra; Annotations, 22 A.L.R.2d 1325 and 157 A.L.R. 60. As to res judi-cata, which was relied on by the trial court, a void judgment may not be used as the basis for the application of that doctrine. Metcalf v. American Surety Co. of New York, 360 Mo. 1043, 232 S.W.2d 526. It is apparent that the motion to dismiss should not have been sustained for the reasons stated. However, in our opinion it should have been sustained for another reason which we shall now discuss.

Incorporated as a part of the petition is the judgment of October 20, 1955 which recites that it was entered “by agreement of parties hereto.” There is no allegation in the petition which in any way purports to challenge the existence or validity of that agreement, and for the purpose of determining whether or not the petition states a cause of action we accept as true that the parties to the previous suit, which includes the present plaintiff, did affirmatively agree that the judgment of September 8, 1955 be set aside and that the judgment of October 20, 1955 be entered in lieu thereof. Whether or not upon the express agreement of all parties a court can amend, alter or change a judgment after the expiration of thirty days, when no after trial motions have been filed, has not been decided by this court, and we find the .rule not to be uniform in other states. See 30A Am.Jur. Jugdments § 651; 49 C.J.S. Judgments § 230d. The lack of uniformity apparently results, at least in part, from the failure to distinguish between jurisdiction of the subject matter and authority to exercise existing jurisdiction.

It is a sound and uniform rule that the parties cannot create jurisdiction of a court over the subject matter by agreement when it otherwise does not exist. Simmons v. Friday, 359 Mo. 812, 224 S.W. 2d 90; Hoover v. Abell, Mo.App., 231 S.W.2d 217. However, the parties may admit the existence or waive the formal proof of a fact essential to vest the court with authority to exercise existing jurisdiction of the subject matter. Caruthersville School Dist. No. 18 v. Latshaw, 360 Mo. 1211, 233 S.W.2d 6. This is what was done in this case. The court had jurisdiction of the persons and the general subject matter of the case in which the September 8, 1955 judgment was rendered, and notwithstanding the previous rule concerning the finality of the judgment, the court had authority to change, alter, or amend that judgment, even after the expiration of thirty days, upon the allegation and after sufficient proof of some authorized basis for the exercise of its jurisdiction. For example, upon motion and sufficient proof the court could amend or change the judgment by order nunc pro tunc, City of St. Louis v. Essex Inv. Co., 356 Mo. 1028, 204 S.W.2d 726; or correct irregularities patent, State ex rel. Holtkamp v. Hartmann, 330 Mo. 386, 51 S.W.2d 22; or set aside the judgment púrsuant to a motion in the nature of coram nobis, Norman v. Young, Mo., 301 S.W.2d 820. From the record we cannot say that all or any of the above procedures would have been appropriate in this case. We mention them to demonstrate that after the thirty day period the judgment is not absolutely immune to change or being set aside. When the parties agreed that the September judgment be set aside and the October judgment substituted therefor, they waived the formal allegation and proof of some authorized ground for the court to exercise its jurisdiction to enter the new judgment.

The petition affirmatively alleges the existence of the agreement and there is no allegation which if true would invalidate that agreement or destroy its effect. Therefore, the. petition negatives the right of plaintiff to obtain the relief requested, and for that reason it fails to state a cause of action.

We find the above reasoning and result to have support in the courts of other jurisdictions. In National Home for Disabled Volunteer Soldiers v. Overholser, 64 Ohio St. 517, 60 N.E. 628, cited and quoted with approval in Adams v. Adams, 80 Ohio App. 245, 74 N.E.2d 119, the court examined a situation somewhat similar to that we have in this case, and then held: “The circuit court acted * * * upon the impression that the court of common pleas * * * was without jurisdiction to set aside the judgment which it had rendered * * * although the parties consented thereto. That view of the subject is erroneous. It was not an agreement to confer upon the court of common pleas jurisdiction of a subject-matter, That court is vested by statute with authority to set aside its judgments after the terms at which they were rendered for specified reasons, and, when counsel consented that that jurisdiction should be exercised in this case, they did no more than to wave the allegation of a statutory ground for such action." In Mobile & O. R. Co. v. Flanagan, 193 Miss. 117, 8 So.2d 241, after recognizing that there was not complete unanimity in the cases, it was stated: “[I]n Whittington v. Simerall, 137 Miss. 511, 514, 102 So. 572, this court has said that ‘The court may vacate or open a judgment after the end of the term if the parties consent or agree thereto.’ Inasmuch as they may thus vacate or open a judgment, it would follow with equal .reason that by like consent they may substitute an agreed judgment, * * See also Freeman on Judgments, (5th ed.) § 142, where it was stated that if a court has retained and continued its jurisdiction by reason of a motion or other proceeding filed during the term, its “power and control over its final judgment or decree survive the end of the term,” and that “the same result may be reached by consent of all the interested parties.” For other cases see Morici v. Jarvie, 137 Conn. 97, 75 A.2d 47; Cichy v. Kostyk, 143 Conn. 688, 125 A.2d 483; Poneleit v. Dudas, 141 Conn. 413, 106 A.2d 479; Treasy v. Moore, 18 Ky.Law Rep. 421, 36 S.W. 1132; Sheridan v. City of Chicago, 175 Ill. 421, 51 N.E. 898. A somewhat related case is Driver v. International Air Race Ass’n of America, 54 Cal.App.2d 614, 129 P.2d 771. In Knowlton v. MacKenzie, 110 Cal. 183, 42 P. 580, the amendment of a judgment after term was held to be improper because the stipulation therefor was not signed by one of the parties.

One of the cases upon which plaintiffs rely is Rosbrugh v. Motley, Mo.App., 216 S.W.2d 165. There, after a motion for new trial was overruled by operation of law, the trial court entered its order granting a new trial and stated that it was “by agreement of the parties.” It was held: “The trial court was powerless to act on defendants’ motion for new trial, after June 29, 1947, even upon agreement of the parties.” That case is cited with approval in Rozell v. Rozell, Mo.App., 229 S.W.2d 700. In this latter case, after a judgment became final “the trial court, by agreement of plaintiff and defendants, attempted to modify the judgment,” and subsequently the plaintiff attempted to appeal from that modified judgment. It was held: “[T]he trial court attempted to modify its judgment * * * by agreement of the parties, and this [it] was powerless to do. The * * * appeal * * * was from a judgment which the trial court had no power to render * * *.”

We believe the Rosbrugh case to be distinguishable because at the time the new trial was granted there was no procedure that could have been followed which would or could have authorized the action taken. Therefore, there was nothing waived by the agreement. As to the Rozell case, it appears that if plaintiff agreed to the judgment he could not have been an aggrieved party for purposes of taking an appeal. However, insofar as either case conflicts with the rule we have herein set out, it is disapproved.

We are of the opinion that in the exercise of our discretion we should afford plaintiff an opportunity to amend his petition, if so advised, see Burke v. City of St. Louis, Mo., 349 S.W.2d 930, but it should be borne in mind that more than three years have elapsed and he must allege facts which, if true, demonstrate that the judgment entered by agreement of the parties is void, and not that it was merely the result of an irregularity. Civil Rule 74.32, V.A.M.R.

The judgment is reversed and cause remanded for such further proceedings as may be proper.

BOHLING, C., concurs.

BARRETT, C., dissents.

PER CURIAM.

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

All of the Judges concur.


author: HYDE, Judge. PER CURIAM.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Relator, v. The Honorable Robert G. J. HOESTER, Judge of the 21st Judicial Circuit of Missouri and of Division 8 of the Circuit Court of St. Louis County, Harry Gershenson, S. M. Aronson, and Edward B. Southall, Condemnation Commissioners, Respondents.
    No. 49521.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1962.
    Rehearing Denied Dec. 11, 1962.

      Robert L. Hyder, Samuel C. Ebling, Jefferson City, for relator.
    Paul Taub, Overland, Attorney for respondent Judge and for intervenor.
   HYDE, Judge.

Relator commenced a condemnation proceeding in the Circuit Court of St. Louis County, in June 1961, for 6.5 miles right of way for a state highway. All required land has been acquired (including 42 parcels condemned) except the property owned by the Ballwin Fire Protection District (hereinafter called Fire District) which has been permitted to intervene. Separate commissioners were appointed to appraise Fire District’s property but, because Fire District had filed a notice of appeal from the order of condemnation, these commissioners were instructed by the court not to proceed.

Relator seeks mandamus to require the court and the commissioners to complete the proceedings. Fire District contends that the State Highway Commission (hereinafter called Commission) has no authority to condemn its property saying it is a political subdivision of the state using this property for governmental functions. (Fire District would be so classed for purposes of taxation under Sec. 15, Art. X, Const.) Of course, if the Commission has no authority to condemn this property, a peremptory writ of mandamus should not be ordered. To expedite the matter we made the following order: “Petition for writ of mandamus sustained. Alternative writ ordered issued returnable to Court en Banc within 30 days because appeal in this case appears to be premature. State ex rel. State Highway Commission v. Hammel, Mo.Sup., 290 S.W. 2d 113. It is further ordered that no possession of property in question be taken pending the final determination of these proceedings.”

Returns have been filed by respondents and intervenor and relator has filed motion for judgment on the pleadings. Therefore, the well pleaded averments in the returns will be taken as true and those averments of the petition specifically denied by the returns taken as false. State ex rel. Pontiac Realty Co. v. Nangle, Mo.Sup., 315 S.W.2d 214, 216, and cases cited; see also State ex rel. Reeves v. Brady, Mo.Sup., 303 S.W.2d 22, 23. Fire District says there were denials in the return which raised fact issues but these (so far as briefed) concern the right to appoint the Commissioners which is really a question of law and is so treated. The contention is that there is no right or authority to condemn Fire District’s property already devoted to a public use and therefore appointment of Commissioners by the court for that purpose could not be valid. Thus decision of the basic issue of the right to condemn will dispose of all contentions made.

Fire District was established under Chapter 321, Secs. 321.010-321.450 (statutory references are to RSMo and V.A.M.S.) and is given authority to exercise the power of eminent domain by Sec. 321.220(10). Its claim is that Commission’s authority to condemn is conferred by Sec. 227.120 which after specifying the purposes for which it may condemn in subparagraphs 1-13 states : “If condemnation becomes necessary, the commission shall have the power to proceed to condemn such lands in the name of the state of Missouri, in accordance with the provisions of chapter 523, RSMo 1949, insofar as the same is applicable to the said state highway commission * * Therefore Fire District says Sec. 523.100 limits Commission’s authority so that it only can condemn for a use that will not materially interfere with the present use being made by it and so would not permit taking Fire District’s entire property, as proposed, thus completely destroying the use now made of it. The applicable part of this section is as follows: “In case the lands sought to be appropriated are held by any corporation, the right to appropriate the same by a railroad, telephone or telegraph company shall be limited to such use as shall not materially interfere with the uses to which, by law, the corporation holding the same is authorized to put said lands.” Fire District also cites City of St. Louis v. Moore, 269 Mo. 430, 190 S.W. 867, and Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050. In the Moore case, we held “the power of a city to condemn property for street purposes is limited to private property, and does not extend to property of the state or property held by a subordinate agency of the state, for the state, as distinguished from other corporations.” See note on this case 15 Law Series, U. of Mo. Bulletin 15; and annotation 37 L.R.A.(NS) 101.

However, as stated in 1 Nichols on Eminent Domain, 3rd Ed., 131, Sec. 2.2: “In the determination of the question whether or not property already devoted to a public use can be subjected to the process of eminent domain the primary factor to be considered is the character of the con-demnor. If the sovereign, such as the state or the United States on its own behalf and for its own sovereign purposes, seeks to acquire such property by eminent domain, the character of the ‘res’ as public property, generally, has no inhibiting influence upon the exercise of the power.” Likewise, it is said in 29 C.J.S. Eminent Domain 861— 862, § 74 p. 861-862: “As a general rule, property already devoted to a public use cannot be taken for another public use which will totally destroy or materially impair or interfere with the former use, unless the intention of the legislature that it should be so taken has been manifested in express terms or by necessary implication, mere general authority to exercise the power of eminent domain being in such case insufficient; * * *. However, the general rule does not ordinarily apply where the power of eminent domain is being exercised by the sovereign itself, such as the state or federal government, for its immediate purposes, rather than by a public service corporation or a municipality.”

This matter was recently considered in Riley v. South Carolina State Highway Department, 238 S.C. 19, 118 S.E.2d 809, 811, in which the court said: “The condemnation here is by the Highway Department as an agency of the State, in behalf of the State and for its own immediate purpose. The condemnor is, in essence, the sovereign. In State Highway Commission v. City of Elizabeth, 102 N.J.Eq. 221, 140 A. 335, 338, the Court said in considering the extent of the power of eminent domain given the State Highway Commission, that it must be borne in mind that the Commission ‘ “is an alter ego of the state” itself’ and ‘not a mere subordinate.’ It was held in Elberton Southern Railroad Co. v. State Highway Department, 211 Ga. 838, 89 S.E.2d 645, 648, that under a general power of condemnation, the Highway Department of Georgia could acquire for public road purposes a part of a railroad right of way and in such a condemnation proceeding ‘the State, the sovereign itself, is acting by and through its * * * constituted agency, the State Highway Department.’ * * * A public highway cannot in the nature of things be constructed for any considerable distance through an inhabited country without crossing property devoted to some other public use. * * * We conclude that the Highway Department, acting for and in behalf of the State, is empowered to condemn respondents’ property even if we regard it as devoted to a public use.”

In the New Jersey case cited (140 A. 1. c. 336, 337) it is said: “The only question involved here is whether or not lands of a municipal corporation used for public purposes are subject to condemnation by the state highway commission for state highway purposes to the same extent as lands owned by private individuals or corporations. * * * In this connection, it should be borne in mind that the state highway system is ‘for the benefit of all citizens, not merely in or for the benefit of any particular locality or the citizens thereof.’ * * * All rights and powers of the municipality are derived from the state, and all its property is held subject to the inherent right of the state to appropriate it to public use whenever the public good may require it. The state gave, and the state may take away.” See also 18 Am. Jur. 719, Eminent Domain, Sec. 93; Welch v. City and County of Denver, 141 Colo. 587, 349 P.2d 352; In re Elimination of Highway-Railroad Crossing in Village oi Altamont, 234 App.Div. 129, 254 N.Y.S. 578, 580, and cases cited, appeal dismissed 259 N.Y. 564, 182 N.E. 182; City of Davenport v. Three-Fifths of an Acre of Land, U.S.C.A. 7th, 252 F.2d 354; United States v. Certain Parcels of Land, D.C., 175 F. Supp. 418.

As noted the Commission condemns “in the name of the state of Missouri” (Sec. 227.120) and, while it is authorized to use the procedure of Chapter S23, it is bound by it only insofar as the same is applicable to it. Our view is that by its very terms Sec. 523.100 is not applicable to the Commission because it is not a railroad, telephone or telegraph company. We have said the Commission, as originally created by legislative enactment (Laws 1921, 1st Ex.Sess. p. 132) was a subordinate branch of the state executive department. State ex rel. McKinley Publishing Co. v. Hackmann, 314 Mo. 33, 282 S.W. 1007, 1010; Bush v. State Highway Commission, 329 Mo. 843, 46 S.W.2d 854, 858. We have also said it was not a state officer nor a political subdivision of the state. Christeson v. State Highway Commission, Mo.Sup., 40 S.W.2d 615. The Commission now has a constitutional status; Sec. 12, Art. IV, establishes a “department of highways,” as a part of the state executive department, which Sec. 29 provides “shall be in charge of a highway commission” with “authority over and power to locate, relocate, design and maintain all state highways; and authority to construct and reconstruct state highways, subject to limitations and conditions imposed by law as to the manner and means of exercising such authority.” Sec. 30 provides for the use of state highway funds “in the discretion of the commission to locate, relocate, establish, acquire, construct and maintain the following” (naming six classes of state highways, in addition to authority “to complete and widen or otherwise improve and maintain the state system of highways heretofore designated.”) We have said “the location and design of highways are matters of policy which are committed solely to the discretion of the Commission.” State ex rel. State Highway Commission v. Weinstein, Mo.Sup., 322 S.W.2d 778, 784; see also State ex rel. State Highway Commission v. Elliott, Mo.Sup., 326 S.W.2d 745. Our conclusion is that, since the highways the Commission is authorized to acquire, locate and construct belong to the state and are provided for the use and benefit of all of its citizens, the Commission in condemning right of way for them acts for the state and as the alter ego of the state, so that the taking is by the sovereign. Sec. 29, Art. IV, hereinabove quoted, makes the Commission’s broad powers “subject to limitations and conditions imposed by law as to the manner and means of exercising such authority.” Therefore, if the General Assembly should ever consider any limitations or conditions necessary it has the authority to impose them.

It was stated at the oral argument that Fire District was constructing a new fire station in another location, to take the place of the one sought to be condemned by the Commission for right of way, so that Fire District’s functions could be continued if the Commission’s authority to condemn was upheld. Perhaps the parties will be able to agree on time of taking and transfer of facilities with reasonable promptness and with a minimum of inconvenience to all concerned. However our alternative writ of mandamus must be made peremptory and it is so ordered.

All concur.

On Motion for Rehearing

PER CURIAM.

In the motion for rehearing filed herein, our ruling that Sec. 523.100 is not applicable to the State Highway Commission is claimed to be erroneous. It is argued: “If 523.100 is inapplicable to the Highway Commission merely by reason of the presence in that Section of the words ‘railroad, telephone or telegraph company’, the same result would necessarily follow as to 523.010 and the entire condemnation procedure for the Highway Commission would collapse and the Highway Commission would have no authority to condemn at all.”

However, the Commission gets its authority from Sec. 227.120, which states in 12 separate subparagraphs the many purposes for which it is authorized to condemn lands. Subparagraph 13 covers any other necessary purpose and states “the commission shall have the power to proceed to condemn such lands in the name of the state of Missouri, in accordance with the provisions of chapter 523, RSMo 1949, insofar as the same is applicable to the said state highway commission.” This last emphasized clause must be construed as making Sec. 523.100 inapplicable to the Commission because it would be in conflict with many of the purposes stated in Sec. 227.120. For example, according to Fire District’s contention, if a corporation owned a filling station on a highway which the Commission decided to widen, it could not condemn the station because (in the language of Sec. 523.100) that would “materially interfere with the uses to which, by law, the corporation holding the same is authorized to put said lands.” We think it is clear that the purpose of the above-quoted part of 227.-120(13) was to authorize the Commission to use the condemnation procedure provided by Chapter 523; and it also should be noted that Sec. 523.010 is not limited to a “railroad, telephone or telegraph company,” as is Sec. 523.100, but includes “other corporation created under the laws of this state for public use.”

Furthermore, as to taking lands held by “political subdivisions”, it is pertinent to show legislative intent to use, for state highways, property held for other governmental functions, that Sec. 227.130 authorizes them and other public agencies, holding title to real estate, “to give, grant and convey to or for the use of the state highway commission of Missouri such right of ways or other easements and appurtenances in said real estate or property as may be necessary for the proper and economical construction or maintenance of state highways.” Our ruling does not mean, as Fire District suggests, that there are no present limits on the authority of the Commission. For example, see Sec. 227.240 as to pipe lines, public utility lines, etc., construed in State ex rel. State Highway Commission v. Weinstein, Mo.Sup., 322 S.W.2d 778; see also Sec. 227.090. Another example is the Public Service Commission’s authority over crossing railroads. Sec. 389.640 discussed in State ex rel. State Highway Commission of Mo. v. Conrad, Mo.Sup., 310 S.W.2d 871.

As to Fire District’s contention that by our ruling “that the State Highway Commission is not a political subdivision of the State, but an ‘alter ego of the State’, such opinion contradicts prior decisions of the Supreme Court”, citing Public Water Supply District No. 2 of Jackson County v. State Highway Commission, Mo.Sup., 244 S.W.2d 4, 6, a divisional opinion, which did say the Commission was “a political subdivision of the state” but upheld its authority to require removal of the Water District’s installations. That statement therein, which made no difference in that decision, was incorrect because the Court en Banc, in State ex rel. McKinley Publishing Co. v. Hackmann, 314 Mo. 33, 282 S.W. 1007, 1010, had previously held the Commission was a subordinate branch of the state executive department; and this has been confirmed by Secs. 12, 29-34, Art. IV, 1945 Constitution, V.A.M.S. As to what is a political subdivision of the state, see Sec. 15, Art. X, Const.; Kansas City v. Neal, 122 Mo. 232, 234, 26 S.W. 695; Wilson v. King’s Lake Drainage & Levee District, 237 Mo. 39, 48, 139 S.W. 136; Stribling v. Jolley, 362 Mo. 995, 245 S.W.2d 885, 889. We further note again that Sec. 227.-120(13) states the Commission’s power is “to condemn such lands in the name of the state of Missouri.”

The motion for rehearing is overruled.