author: WELBORN, Commissioner.

text:
    George W. MILLER, Marie McCanles and A. C. Bay, Trustees, Appellants, v. Arthur FELS, Arthur Fels Co., Formerly Arthur Fels Bond & Mortgage Co., and Western Holding Corporation, Respondents.
    No. 50410.
    Supreme Court of Missouri, Division No. 1.
    Sept. 14, 1964.
    Rehearing Denied Oct. 12, 1964.

      Paul Van Osdol, Jr., Lynn C. Hoover, Terrell, Hess, Van Osdol & Magruder, and Edmund B. Smith, Courtney W. Perkins, Meyer, Smith, Shute & Penner, Kansas City, for appellants.
    Lawrence R. Brown, Alvin D. Shapiro, Stinson, Mag, Thomson, McEvers & Fiz-zell, Kansas City, for respondents.
   WELBORN, Commissioner.

This action was brought by George W. Miller, Marie McCanles and A. C. Bay, as statutory trustees of a defunct corporation, Ward Park Building Company, against Arthur Fels, Arthur Fels Co. (formerly Arthur Fels Bond & Mortgage Co.) and Western Holding Corporation. The plaintiffs sought a declaratory judgment that they were the owners of $30,000 first mortgage bonds in the possession of the defendants. The bonds were claimed to be secured by a first mortgage deed of trust on an apartment building in Kansas City, known as Casa Loma West, title to which was held by Western Holding Corporation. The petition also sought a decree of foreclosure of the deed of trust securing the bonds. After hearing the evidence offered by the parties, the trial court sustained the defendants’ motion for judgment as a matter of law. After their motion for new trial had been overruled, plaintiffs appealed to this court. We have jurisdiction by reason of the amount in controversy.

Ward Park Building Company (herein referred to as “Ward Park”) was a Missouri corporation. The principal stockholders were George W. Miller and Guy H. McCanles. (McCanles died in 1932. His widow, Marie McCanles, was a member of the last board of directors of Ward Park.) The third stockholder was A. C. Bay, who held only qualifying shares. In 1929, Ward Park proposed to erect an apartment building in Kansas City, to be known as Casa Loma West. In March, 1929, an agreement was entered into between Ward Park, Miller and McCanles, referred to collectively in the agreement as “the BORROWER,” and Arthur Fels Real Estate Mortgage Company, a predecessor of the defendant Arthur Fels Company, as “the LENDER.” The Fels company agreed to obtain for the borrower a loan of $325,-000, to be secured by a first mortgage deed of trust on property in Kansas City and the apartment building proposed to be erected thereon with the proceeds of the loan. The deed of trust and bonds evidencing the indebtedness were to be executed by an individual and the bonds endorsed by Ward Park.

The agreement provided that the lender should receive a commission of $29,250 for negotiating the loan. In addition, “Borrower” agreed to purchase $30,000 of the bonds to be executed. “Borrower” further agreed “as additional security and protection for the Lender,” to place such bonds in escrow with the Commerce Trust Company under an escrow agreement whereby the escrow agent would retain the $30,000 of bonds until such time as the original amount of the $325,000 loan had been reduced by $50,000. On such occurrence, the $30,000 in bonds were to be surrendered to “the Borrower.” The agreement provided that, in the event of default in payment of the bonds or other terms of the deed of trust prior to the reduction of the indebtedness to $275,000, the $30,000 of bonds were to be subordinated “to the full other balance of principal obligation remaining unpaid.”

On March 25, 1929, a first mortgage deed of trust was entered into between George C. Low and Helen Low, husband and wife, straw parties for Ward Park, Grant I. Rosenzweig, Trustee, and Arthur Fels Real Estate Mortgage Co., as financial agent, on the Casa Loma West property, to secure the agreed upon loan of $325,000, evidenced by bonds executed by the Lows, payable to the Fels company, and endorsed by Ward Park, maturing between October 1, 1930, and April 1, 1936, at interest rates of 6% and 6J4% per annum. The bonds were delivered to the Fels company, which proceeded to sell them, endorsing them to the purchasers without recourse. The Fels company was unable to market the entire issue and itself held a considerable amount of the bonds. The proceeds of the loan were made available to Ward Park and the apartment building constructed as agreed. $30,000 in bonds, maturing April 1, 1936, were delivered in escrow to Commerce Trust Co., under the above-mentioned terms. The closing statement of the Fels company for the loan showed a debit of the $30,000 face amount of the bonds and accrued interest. No money was actually paid by “the Borrower” for the bonds.

On June 15, 1929, the Lows, for a consideration of $1.00 conveyed by warranty deed to Ward Park the property covered by the deed of trust. The deed recited that the property was subject to the deed of trust, but the grantee did not assume the grantors’ obligations under the deed of trust.

The Casa Loma West apartment building was completed, but by that time the depression began to take hold. Ward Park experienced difficulty in obtaining sufficient income from the project to pay the interest on the bonds and the principal as they matured. Some $37,500 of the bonds had been purchased by H. K. Negbaur. $8,000 of the Negbaur bonds were due October 1, 1931, and the balance at various dates to October 1, 1933. On December 4, 1931, an agreement was entered into between Ward Park, executed by Miller as its president, Miller, individually, McCanles, Negbaur and the Fels company. By this agreement, the maturity dates of the Negbaur bonds, except for $8,000 worth maturing October 1, 1931, which were to be paid, were extended to April 1, 1936, the date at which the last maturing bonds of the issue were to mature. The agreement further provided that the $30,000 in bonds held in escrow by Commerce Trust should, as soon as they were freed from the escrow, which was continued in effect under its original terms except for providing that interest need not be paid on the escrowed bonds, be delivered to Negbaur as additional and collateral security for his bonds.

The operation of Casa Loma West continued to present financial problems. Although some $24,000 of the bonds were retired, by November 29, 1933, the bonds were in default and Ward Park was unable to make interest and principal payments as they became due. On that date, in lieu of foreclosure of the deed of trust, Ward Park transferred the property by warranty deed for a consideration of $2,000 to Western Holding Corporation, a wholly owned subsidiary of the Fels company. The deed recited that the property was subject to the deed of trust, but the grantee did not assume the obligations of the mortgage.

On January 1, 1934, the Secretary of State of Missouri forfeited the charter of Ward Park.

Western Holding proceeded to operate the Casa Loma West. Some payments of interest, at a reduced rate, were made on the bonds, but the only reduction in principal amount was by the surrender of $10,-000 face value of bonds owned by tenants of the apartment building, in payment of rent.

At some date, not shown in the record of the trial, the Fels company began to purchase, at face value, the Casa Loma West bonds from holders. According to J. Ralph Fels, executive vice-president of the Fels company, “(W)e had sold these to these good customers in good faith, and on our recommendation they bought them, and we thought it was a moral obligation.” On October 16, 1950, the Fels company entered into an agreement with Negbaur’s heirs to purchase at their face value $32,000 of the bonds owned by Negbaur at his death. Payment was to be made over a period of approximately two years. The purchase agreement provided that Fels should receive all interest of the sellers in the agreement dated December 4, 1931, pertaining to the $30,000 escrowed bonds. In July, 1952, Fels completed the purchase of the Negbaur bonds. On July 3, 1952, Commerce Trust Co. released the $30,000 in bonds to the Fels company on its indemnification receipt.

On June 26, 1952, Miller’s attorney had written Commerce Trust, stating: “This is to advise that Mr. George W. Miller claims both the title and right to possession of those ($30,000) bonds and herewith advises that they should not be delivered to the Arthur Fels Bond and Mortgage Company but should be delivered to George W. Miller.” Subsequently, on February 22, 1954, attorneys for the plaintiffs as statutory trustees, wrote Fels: “We are asking that you advise us of the basis on which said bonds were claimed by you, and on what terms you now hold them.” No reply to this inquiry was received.

On March 31, 1955, this action was filed in the Jacks on County Circuit Court. By the first count of their petition, plaintiffs sought, on the basis of the above transactions, a declaratory judgment as to the respective right of the plaintiffs and the defendants in the $30,000 bonds, and asked the court to declare plaintiffs to be their absolute owners, free and clear of all claims of defendants. Count II prayed for judgment of foreclosure of the deed of trust securing the bonds. The case was tried on a first amended petition filed April 5, 1963, asking the same relief as that sought in the original petition, but expanding somewhat on the allegation of Count II. The defendants filed a general denial and also alleged the following now relevant defenses: (1) That the petition failed to state a claim upon which relief may be granted; (2) That both counts are barred “by the relevant Statutes of Limitation”; (3) That the causes of action accrued, if at all, to an extinct corporation and are not part of the “winding up” of the corporation’s affairs; that the agreement sued upon was abandoned by the plaintiffs’ corporation; (4) That Section 4622, RSMo 1929, Section 351.525 note RSMo 1959, V.A.M.S., under which plaintiffs purported to act, does not authorize plaintiffs to bring this action; (5) That plaintiffs have been guilty of laches.

At the trial, documents pertaining to the several transactions were introduced in evidence, along with a stipulation of facts and some oral testimony. About the only disputed fact arose from the recital in the. Negbaur agreement “ * * * (which ■$30,000 of mortgage bonds McCanles and Miller state are exclusively owned by them, subject to said escrow agreement affecting the same),” and the statement of Miller’s attorney in his letter of June, 1952, to Commerce Trust, in which he stated: “This is to advise that Mr. George W. Miller claims both the title and right to possession of those bonds.” The defendants pointed to these statements as inconsistent with the claim of plaintiffs’ petition that the bonds were part of the assets of the defunct Ward Park corporation. Inasmuch as the trial court made no findings of fact and entered only a general judgment in response to the defendants’ motion at the close of the entire case, we do not know whether the ruling of the trial court was in any manner based upon this disputed factual matter.

On their appeal, plaintiffs assert that, as a matter of proper procedure in response to Count I of their petition, praying for a declaratory judgment, the court should not have entered a general judgment, but should have declared the respective rights of the parties in the disputed bonds. The plaintiffs further contend that such judgment should have declared that they are the owners of the bonds and entitled to their possession. Stated as simply as possible, plaintiffs’ theory is that the $30,000 bonds were to become fully matured obligations only upon the satisfaction of the original escrow agreement and the Negbaur agreement; that the conditions of the escrow agreement were satisfied upon the release of the bonds from escrow on July 3, 1952, and that the •conditions of the Negbaur agreement were likewise satisfied at that time; that the Fels •company’s claim that the Negbaur and other bonds purchased and held by them had not been retired should be ignored; that the ■corporate entities of the Fels company and its wholly owned subsidiary, Western Holding, should be pierced and the two corporations treated as a single entity; that to do so would merge all forms of title and interest in a single entity, thereby extinguishing the outstanding bonds held without cancellation by the Fels company, secured by the deed of trust on the property, title to which was in Fels’ wholly owned subsidiary, Western Holding; that, viewed in such light, the condition of the escrow agreement had been satisfied and the bonds should have been tendered to plaintiffs and placed in line for payment as fully matured obligations.

Appellants in this court base their right to relief upon the treatment of the purchaser of the outstanding bonds, the Fels company and its wholly owned subsidiary, Western Holding Corporation, as a single entity. To do so, according to appellants, would produce a merger of the security interest and the equity of redemption under the deed of trust, thereby discharging the bonds which Fels acquired and producing the satisfaction of the escrow conditions which would entitle the appellants to the possession of the previously escrowed $30,000 bonds. In their brief, appellants’ position is stated as follows :

“Respondent Arthur Fels is the owner of all but qualifying shares of Respondent Fels Company, and Respondent Fels Company is the owner of all but qualifying shares of Respondent Western Holding Corporation. Respondent Fels is the managing officer of both corporations. Respondent Fels and members of his family make up the Board of Directors and officers of both corporations. All the bonds, except those of Appellants, have been acquired and are held by Respondent Fels’ company. In fact, the bonds originally belonging to members of Respondent Fels’ family were acquired by Fels. Title to the property was taken in the name of Western Holding Corporation and not Fels’ company. Fels’ company acquired the bonds at face value long after they were in default. At least some of the bonds were acquired under the intimation that they were being retired. Fels Company has not appointed a successor trustee.
“By Fels separating the ownership of the various rights, titles and interests of the Fels complex, the reason for separation is apparent. The obvious purpose is to prevent a merger of all bonds by merger of all forms of title and interest in one person and thus present retirement of the escrow bonds. Fels Company has inequitably used its fiduciary position as financial agent to prevent satisfaction of the bonds and has acquired a valuable property for far less than its market value.”

Several years ago, this court, in May Department Stores Company v. Union Electric Light and Power Co., 341 Mo. 299, 107 S.W.2d 41, 55, laid down the test to be applied in determining whether or not the circumstances of a particular case warranted equity’s disregard of the “technical legal barriers” of the corporate form. In that case the court stated:

“Perhaps broader phases of the matter of limitations upon limited liability of corporate stockholders in other corporations should always be a legislative rather than a judicial question. It does seem, however, that the determination of whether there is a case for equitable relief could and should be decided by the test of whether or not the arrangement involved is being used for a proper purpose. Should not all these other suggested tests be used only as aids for determining the true purpose of the arrangement? Making a corporation a supplemental part of an economic unit and operating it without sufficient funds to meet obligations to those who must deal with it would be circumstantial evidence tending to show either an improper purpose or reckless disregard of the rights of others. Equity sets aside legally sufficient conveyances if their purpose is to defraud creditors. If any intercorporate affiliation is devised for or is being used to accomplish an improper or unlawful purpose, certainly equity does have the authority to tear down technical legal barriers and reach beyond them to impose liability or grant proper relief. If the purpose is lawful, and fair and equitable to those with whom it is intended to deal, legal forms- and relationships should be observed. Men have the right to use legal forms which they believe to be helpful in accomplishing proper purposes. The question should not be merely ‘instrumentality,’ but ‘instrumentality for what purpose.’ Cases in many fields of the law turn on intent or purpose. ‘Things do not have to be in broad contrast to have different practical and legal consequences. Actions take estimation from degrees, and of this life and law are replete with examples.’ Industrial Accident Commission v. Davis, 259 U.S. 182, 42 S.Ct. 489, 491, 66 L.Ed. 888.”

See also Carter v. Matthey Laundry and: Dry Cleaning Company, Mo.Sup., 330 S.W. 2d 771, 777(4); Schwartz v, Shelby Construction Co., Mo.Sup., 338 S.W.2d 781, 793-794(13, 14).

According to appellants: “The actions of the Respondents are neither fraudulent nor-illegal; however, they are unjust.” The-different entities of the Fels complex are-being used “for an improper purpose.” “By-holding equitable title to the building in a. wholly owned subsidiary and the obligations of the building in the parent, and refusing to appoint a trustee to hold legal title, Fels and his corporations have completely precluded the natural satisfaction of the escrow and subordination conditions, and forced Appellants to seek the aid of the equity powers of the court to stop Fels’ improper and unjust use and misuse of the-corporate. privilege.”

Appellants do not accuse the respondents of improper use of their corporate structure on their original acquisition of the Casa Loma West. Although it does not appear in the record, the plaintiffs as officers and directors of Ward Park were undoubtedly aware in 1933, when they conveyed the apartment to Western Holding, that they were dealing with a Fels subsidiary. There is no claim that such facts were unknown to the appellants or that they were unaware of the relationship between the Fels company and Western Holding. Rather than have the deed of trust foreclosed, the appellants as officers of Ward Park conveyed Ward Park’s equity to Western Holding and received $2,000 therefor. Appellants say that this conveyance was intended for the “benefit of outstanding bondholders, including Fels Company and Ward Park.” However, we would be inclined to believe that the interest of Ward Park as a bondholder at that time was not a major consideration in the transfer. Ward Park was, as the endorser for its accommodation maker, the principal obligor on the bonds. Whether or not Ward Park had other assets than Casa Loma West and other liabilities than the bonds does not appear. According to Miller, Ward Park was “defunct.” If it had other assets, it was undoubtedly primarily concerned with the extent of its liability on -the $271,000 outstanding bonds owed others rather than with its $30,000 holdings. Fels was concerned as the seller of the bonds : and as the holder of some $54,000 of them that were in default. By the subordina- - tion agreement the $30,000 bonds could have little or no value unless the operation . of Casa Loma West became successful.

In any event, appellants find nothing sinister in the original transaction. Fels had numerous interests, including loans and insurance, as well as the ownership of property. That the different corporate entities participated in separate aspects of the overall enterprise does not by and of itself show improper use of the corporate form.

According to the appellants, the Fels design took on sinister aspects sometime after the Fels company began to acquire the outstanding Casa Loma bonds. Appellants’ theory is that this was conceived as a device to avoid reduction of the outstanding indebtedness and thereby defeat the appellants’ right to the $30,000 bonds. No direct evidence of such purpose appears.

Actually there is no showing just when the Fels company began to acquire the outstanding Casa Loma bonds. Appellants’ brief places it “at some indefinite point in time.” Insofar as it appears, that “indefinite point in time” may have been after the statute of limitations had run on the bonds. At least a sizable amount of the bonds was acquired subsequent to 1946, with the last acquisition in 1958. Western Holding’s payment of interest would not have extended the obligation (Coleman v Trueblood, 351 Mo. 188, 172 S.W.2d 863, 865(2, 3)) and there is no showing of any agreement or promise on the part of either Fels or Western to pay the bonds.

According to the appellants, they first became aware of Fels’ sinister design when they learned that Fels was seeking to obtain possession of the escrow bonds in 1952, following their acquisition of the Negbaur bonds. However, at that time Ward Park had been out of existence for almost twenty years. Ward Park had simply walked away from the obligation which it owed upon the outstanding bonds. Ward Park having been out of the picture for nearly twenty-four years insofar as its obligation was concerned, Fels may well, without wrongful design, have surmised that Ward Park was equally out of the picture insofar as the escrowed bonds were concerned. We cannot say that at that time an improper use of the corporate structure sprang into being which causes us to consider from that moment the Fels company and Western Holding a single entity.

Clearly, there was no showing on the part of appellants of an improper use of a multiple corporate structure such as was found to exist in the May Department Store case, supra, cited and relied upon by appellants. In that case, the court found that a subsidiary corporation of Union Electric was used for the sole purpose of permitting a charge for public utility service in excess of that permitted by the Public Service Commission. Such purpose was held “not proper or lawful, because evasion of the law for uniform regulation of public utility rates will not be permitted by such a device; * * Here, appellants make no claim that the arrangement of Fels violates any statute or other rule of law. They do not contend that, as to the bondholders from whom the Fels company acquired the bonds, the arrangement was not “fair and equitable.” Certainly, the arrangement was as much “intended to deal” with them as with appellants. Appellants have failed to show that as to them, the arrangement was for such an improper purpose as to disregard “legal forms and relationships.”

What of the injustice of which the appellants complain? Ward Park owed Fels, the original payee of the bonds, $30,000 for the bonds it agreed to purchase. Plowever, rather than pay Fels for the bonds and have Fels pay Ward Park the total amount of the loan, Fels merely paid Ward Park $295,000 less its $29,250 commission, and delivered to Ward Park $30,000 in bonds. According to appellants, this $30,000 represented “land, labor and entrepreneural ability” supplied by Ward Park and its officers and stockholders. Ward Park did supply the land. Its value does not appear. The labor contributed by Ward Park likewise does not appear. Undoubtedly Mr. Miller had considerable entrepreneurial ability. He apparently was successful in numerous ventures and Casa Loma West was undoubtedly largely a victim of the times in its early operations. In any event, the contributions of Ward Park and its stockholders and officers were insufficient to make a success of the Casa Loma operation. Despite their efforts the first mortgage bonds fell into default. Casa Loma West was transferred to Western Holding for $2,000 in cash and the corporate existence of Ward Park was terminated by the Secretary of State on January 1, 1934.

The evidence is sparse as to the operation of Casa Loma West following its acquisition by Western Holding and until the wartime and postwar years. However, it can safely be assumed that, in view of the termination of Ward Park’s existence, it contributed nothing further to the operation. The evidence docs not show how the bondholders were fended off following Western Holding’s acquisition of the apartment. The appellants intimate that the death of the trustee under the deed of trust and the failure of the Fels company as the financial agent possessing the power to designate a successor trustee to exercise such power may have influenced an apparent lack of action on the part of the bondholders to press for foreclosure of the deed of trust. Again, however, there is no showing when Mr. Rosenzweig, the original trustee, died. Had he died after April 1, 1946, when the period of limitations had run on the bonds, failure to appoint a successor trustee might have been less significant than it would have been should his death have occurred prior to April, 1946. In any event, in some manner Western Holding was able to continue the operation of Casa Loma West without paying the matured and maturing bonds. Undoubtedly, the wartime demand for apartments and the postwar inflation contributed to the ultimate success of the Casa Loma West operation. By Miller’s estimate the value of the building in 1963 was $750,000. As above referred to, the appellants’ claim of injustice is based to some extent upon their contention that Fels had obtained a building of this value for an outlay of a considerably smaller sum of money. However, had the deed of trust been foreclosed in 1933 and a purchaser found who could have continued its operation and held the property until 1958, he undoubtedly would have reaped the same benefit and the appellants would he in no different position than they are now.

Fels declined to estimate the present value of the apartment building, but the income and expense figures indicate that the operation became increasingly profitable. All of this undoubtedly contributed to Fels’ recognition of its “moral obligation” to the holders of the bonds. However, Fels and Western Holding did see the operation through to an apparently successful conclusion.

Wherein then does the injustice lie? Fels has not seen fit to assume the purchase from the appellants or the redemption of the $30,000 escrowed bonds. This action is directed, in effect, at forcing them to do so. Again, however, the appellants are trying to compel payment of an obligation on which they are the principal obli-gors. They effectively rid themselves through the forfeiture of the Ward Park corporate charter of the principal and interest obligation on the major portion of the bond issue. Now the obligation having, according to appellants, been discharged by others, they seek to assert liability on the part of those who discharged the obligation. We fail to see wherein the appellants are being dealt with unjustly. We are not sufficiently impressed with the justice of appellants’ cause as to “pierce the corporate veil.” If the corporate veil is not to be pierced, then, according to the appellants’ theory, they have made no showing that the terms of the escrow and Negbaur agreements have been so satisfied as to entitle them to possession of the $30,000 bonds or to the foreclosure of the deed of trust securing them.

In view of this conclusion, we need consider no further the other matters urged by the respondents in support of the trial court’s judgment.

The judgment of the trial court is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . Arthur Fels, on his deposition, testified that he owned approximately % of the outstanding shares of the Fells com-party and that his son, X Ralph Fels, owned the remainder except for qualifying shares.

      . An offering circular for the bonds placed the land’s appraised value at $36,-000. However, other estimates in the circular give rise to the question of whether or not this was a wholly realistic figure. The circular projected gross income of $106,320 per year from the operation of the apartment. Western’s gross receipts ranged from $40,413 in 1934 to $92,077 in 1953.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Donald W. WHITLEY, Appellant.
    Nos. 50829-50831.
    Supreme Court of Missouri, Division No. 2.
    Oct. 12, 1964.

      Thomas F. Eagleton, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent
    Donald W. Whitley in pro. per.
   STOCKARD, Commissioner.

On May 24,1963, appellant, Donald Willis Whitley, was involved in an automobile accident in which three persons in the other automobile were killed. Appellant subsequently was charged in three separate in-formations with the crime of manslaughter, each information alleging the death of a different person. The record in each case recites that after appellant “had an opportunity and reasonable time to consult with his said counsel and with a friend, and both [appellant] and his said counsel being present in open court, [appellant] waives formal arraignment and enters a plea of guilty to the charge of manslaughter, a felony, and the court states to the [appellant] that he has voluntarily entered his plea of guilty to the said charge, and now asks [appellant] if he has any legal reason to give why judgment should not be pronounced upon him iix accordance with his plea of guilty and the [appellant] says nothing.” In Case No-1943 (the case numbers referred to herein are those of the circuit court) in which appellant was charged with manslaughter resulting from the death of Cliff Fife, the trial court then imposed a sentence of imprisonment for a term of two years. In Case No. 1944 in which appellant was charged with manslaughter resulting from the death of Elizabeth Ann Fife, the trial court imposed a sentence of imprisonment for a term of two years “said sentence to run consecutively and not concurrently with the sentence of two years imposed on this date in Case No. 1943.” In Case No. 1945 in which appellant was charged with manslaughter resulting from the death of Denny Dysart Fife, the trial court imposed a sentence of imprisonment for a term of two years “said sentence to run consecutively and not concurrently with the sentences heretofore imposed on this date in cases numbered 1943 and 1944.”

In each case appellant has filed a motion, pursuant to Supreme Court Rule 27.26, V.A.M.R., in which he alleges that the sentence is illegal because “the Circuit Court of Howard County, Missouri, imposed upon him a sentence which was not authorized by law, in that by law the utmost valid sentence the court could impose was ai sentence for only one offense of manslaughter resulting from the single accident instead of the separate sentences imposed by the court.” The motion was denied in each case, and appellant has appealed to this court. The three cases have been consolidated.

Section 559.070 RSMo 1959, V.A.M.S., provides that “Every killing of a Fuman being by the act, procurement or •culpable negligence of another, not herein •declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter.” The gravamen of the offense is the killing of a human being, and the statute by its terms contemplates that there shall be as many offenses as there are human beings killed, whether by one or several ■acts. It is well established and admitted that the State cannot split up a single crime .and prosecute it in parts, State v. Toombs, 326 Mo. 981, 34 S.W.2d 61, 64, but “there is a distinction between an offense and the unlawful act out of which it arises and the rule that a person shall not be twice put in jeopardy for the same offense is directed to the identity of the offense and not to the act. Consequently, in a plea of former jeopardy * * * it is not sufficient to show that the act is the same, but it must be shown that the offense also is the same in law and fact.” Annotation, “Acquittal or conviction of one offense in connection with operation of automobile as bar to prosecution for another,” 172 A.L.R. 1053. See generally, State v. Chernick, Mo., 278 S.W.2d 741; State v. Brooks, Mo.App., 298 S.W.2d 511; State v. Varner, Mo., 329 S.W.2d 632, certiorari denied 365 U.S. 803, 81 S.Ct. 468, 5 L.Ed.2d 460; 22 C.J.S. Criminal Law § 285 and § 298. In this case appellant was charged with three separate and distinct offenses; the killing by culpable negligence •of three different human beings, and three ■separate offenses were committed even though the three deaths arose out of the same acts constituting culpable negligence.

The precise factual situation of this case Fas been previously considered by the courts ■of other states. In 7 Am.Jur.2d, Automobiles and Highway Traffic, § 344, we find this statement: “Most courts hold that there are as many separate and distinct offenses .as there are persons injured or killed by the unlawful operation of a motor vehicle, so that successive prosecutions may be instituted against the person who committed the unlawful act without violating the rule against double or former jeopardy. For example, it has been held that a motorist may be tried and convicted upon two indictments charging him with manslaughter, where he so operated his vehicle as to cause the death of two persons in the same accident. Moreover, where a motorist killed five persons, it was held that his acquittal of the charge of manslaughter for causing the death of two such persons would not bar a prosecution of manslaughter for causing the death of the other three persons.” Cited are the following cases: People v. Allen, 368 Ill. 368, 14 N.E.2d 397; Fleming v. Commonwealth, 284 Ky. 209, 144 S.W.2d 220; State v. Fredlund, 200 Minn. 44, 273 N.W. 353, 113 A.L.R. 215; Lawrence v. Commonwealth, 181 Va. 582, 26 S.E.2d 54; Commonwealth v. Maguire, 313 Mass. 669, 48 N.E.2d 665; State v. Taylor, 185 Wash. 198, 52 P.2d 1252. See also, Holder v. Fraser, 215 Ark. 67, 219 S.W.2d 625; Burton v. State, 226 Miss. 31, 79 So.2d 242; Jeppesen v. State, 154 Neb. 765, 49 N.W.2d 611; State v. Martin, 154 Ohio St. 539, 96 N.E.2d 776; State v. Cheatwood, 84 Ohio App. 125, 82 N.E.2d 770; McHugh v. State, 160 Fla. 823, 36 So. 2d 786, certiorari denied 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081; Fay v. State, 62 Okl.Cr. 350, 71 P.2d 768 ; 22 C.J.S. Criminal Law § 298 b; Annotation, 172 A.L.R. at p. 1062-1064.

Appellant relies on and cites only one case, State v. Citius, 331 Mo. 605, 56 S.W. 2d 72, where the defendant was charged with the robbery of two persons. On appeal it was urged that the trial court erred in refusing to require the State to elect whether it would go to the jury on the charge of robbing one or the other of the two victims, and in the course of the opinion it was said: “It is obvious that the robbery of the Polks was one transaction at one time and place, and was but one offense. Therefore if appellant had been charged separately he might have pleaded a conviction in one case in bar of the prosecution of the second case.” However, recently this court ruled in State v. Ashe, Mo., 350 S.W.2d 768, 769, without making reference to the Citius case, that “ Where accused robbed two or more persons at the same time a prosecution for one of such robberies does not prevent a subsequent prosecution for another.’ ” The factual situation of the Citius case is wholly dissimilar to that of the pending cases, but in any event, as to robbery, the Ashe case now sets forth the rule in this State.

Appellant pleaded guilty to each of the three charges of manslaughter. Therefore, the question of the application of the doctrine of “collateral estoppel” does not arise.

There is no merit to appellant’s contention that under the circumstances disclosed by the record he committed but one offense of manslaughter. The judgment of the trial court in each case dismissing the motion for relief under Supreme Court Rule 27.26, V.A.M.R., was correct, and therefore each judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Charles WALLER, Appellant.
    No. 50124.
    Supreme Court of Missouri, Division No. 1.
    Oct 12, 1964.
    Thomas F. Eagleton, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.
    Charles Waller, pro se.
   WELBORN, Commissioner.

This is an appeal from a judgment denying relief to appellant in a proceeding under Supreme Court Rule 27.26, V.A.M.R. The motion to vacate, filed in the Wayne County Circuit Court, sought to set aside a judgment and sentence entered by that court on April 26, 1954, on appellant’s plea of guilty to a charge of murder in the second degree. The sentence imposed was imprisonment for a term of 50 years. After a hearing on the motion, the circuit court found the issues against the appellant and this appeal ensued.

The motion in this case was apparently prepared by the appellant himself. However, he was represented at the hearing by counsel of his choosing who withdrew prior to the perfection of this appeal. The hearing in the circuit court was directed at two allegations of the motion: That the plea of guilty was secured by fear and trickery and that a statement taken from the appellant was induced by coercion. Evidence was heard on both of these issues. However, inasmuch as appellant’s conviction was on a plea of guilty, the circumstances of the statement or confession are not material in this proceeding.

The evidence at the hearing showed that the offense for which appellant was convicted occurred on January 9, 1954. The victim was Odie Eaton, a tavern proprietor. Appellant and his brother were drinking at the tavern. An argument arose between Eaton and the appellant. Eaton threatened appellant with a blackjack and appellant’s brother persuaded the appellant to leave the tavern. Appellant walked to his home approximately one-half mile from the tavern, procured a shotgun, walked back to the tavern and shot through the window, inflicting the fatal wound on Eaton. The trial court found that the shooting occurred some 45 minutes after appellant left the tavern.

Appellant was arrested shortly after the shooting and taken to the county jail in Greenville. On the same night, appellant gave the arresting officers an account of the shooting which was reduced to writing and signed by appellant and in which he admitted the shooting. According to the sheriff who participated in the arrest, appellant “had been drinking, yes, but I have seen people a lot drunker.”

On February 17, 1954, Roy W. McGhee, Jr., Prosecuting Attorney of Wayne County,, filed an information in the Wayne County Circuit Court, charging appellant with murder in the first degree.

J. Ben Searcy, an able and experienced member of the Shannon County Bar, -was employed by appellant’s family to defend appellant. At the hearing on the appellant’s motion, Mr. Searcy was called as a witness by the appellant. According to Mr. Searcy, he investigated the circumstances of the-homicide and concluded that defense against the charge of murder in the first degree would be very difficult. Mr. Searcy represented appellant on his preliminary hearing and thereafter discussed the case with the prosecuting attorney. The prosecuting attorney originally refused to consider reduction of the offense charged, but, early in April, 1954, he did agree to reduce the charge to murder in the second degree and to recommend a 50-year sentence if a plea of guilty was entered to that charge. Mr. Searcy discussed this proposition with ap pellant, who remained in the county jail until his sentencing. Mr. Searcy also addressed to appellant a lengthy letter in which he explained to the appellant the punishment for murder in the first degree and possible defenses to that charge. In the letter, Mr. Searcy further stated:

“ * * * I have studied the Missouri law relative to murder very carefully during the last three weeks and I have not found anything that would justify the Court in giving us a second degree instruction. This, would mean that the only thing that the jury would pass upon would be as to your guilt or innocence of the crime of first degree murder and, upon them finding you guilty your punishment would be assessed at death or life imprisonment and nothing else. We do not have sufficient evidence to .justify a jury in returning a verdict of not .guilty of first degree murder so I think it would be very foolish for us to turn down, the offer of fifty years on pleading guilty to second degree murder.
“Please understand that the Judge is in no way bound by the recommendation of the Prosecuting Attorney but, I have been practicing law in Judge Eversole’s Court for the space of ten or twelve years and I .am reasonably sure that he will follow the recommendation. As your attorney, after giving your case careful and deliberate consideration, I advise you to enter a plea ■of guilt to the crime of second degree murder with the understanding that the Prosecuting Attorney will recommend a sentence •of fifty years.”

On April 26, 1954, the prosecuting at■torney amended the information to charge 'the appellant with murder in the second degree. Thereupon, appellant, with Mr. Searcy present, entered a plea of guilty to 'that charge and was sentenced to 50 years’ ■imprisonment.

The appellant testified in his own behalf. According to him, Mr. Searcy visited him ■only twice while he was confined in jail. He saw him once a few days after his arrest and at the preliminary hearing when, ■according to appellant, Searcy told him: “This looks pretty bad. You have got a pretty bad case.”

Appellant’s testimony relative to his discussion of the plea of guilty to a charge of murder in the second degree is somewhat ■confused. He acknowledges that Searcy told him that the prosecuting attorney would not recommend a sentence of less than 50 years on a plea of guilty to a charge of murder in the second degree. He denied having received the letter addressed to him by Searcy, in which the latter fully •explained the alternatives which existed as 'he viewed the matter. However, the appellant acknowledged receipt of another communication addressed to him by Searcy.

We gather from the appellant’s testimony that his hope of receiving less than a 50-year sentence arose primarily from conversations with his brother, John Waller. According to appellant: “I felt that after my brother had given me the information after hiring me a lawyer, that with his information coming from him would be the same as if it come from my lawyer and he said I would get under 15 years and I felt that it would be 10.” John Waller, called as a witness by appellant, did not testify regarding any matter other than the events at the tavern prior to the shooting.

Appellant’s version of the events on his plea of guilty was as follows:

“We were standing out in the middle of the floor there. They brought me up there. I didn’t know whether I was going back that way or coming this way. He said, ‘He (sic) get over here,’ and they pushed me over there. I got over there and he said, ‘You plead guilty.’ I looked at this Judge and looked at the lawyer. I figured that he would say something to the Judge. He never said a thing. He kept telling me to plead guilty. I said, ‘There ain’t nothing I can do, I ain’t got no money.’ I said, ‘Okay.’ So, the Judge started in sentencing me. My lawyer didn’t say anything.”

On the basis of the evidence presented, the trial court concluded that “there is no basis in fact for defendant’s claim of fraud, collusion, apprehension, persuasion, misapprehension and lack of representation by counsel.” On our review de novo on this appeal (Supreme Court Rule 28.05, V.A. M.R.), we arrive at the same conclusion.

The appellant’s attorney, according to the credible evidence, clearly explained to the appellant that his plea of guilty to a charge of second degree murder would result in a recommendation by the prosecuting attorney of a 50-year sentence and that the judge would likely accept that recommendation. We find nothing in the testimony of appellant himself to show that Mr. Searcy gave appellant reason to expect otherwise. The assertion in appellant’s motion that “the defendant’s counsel told him that the only way defendant could escape the Death Penalty was to plead guilty and that the prosecutor had assured him that if the defendant would plead guilty he would recommend ten (10) years, and that it was all fixed up” simply is not supported by any evidence whatsoever. In his own testimony at the hearing, the appellant did not claim that such statement had been made to him by Mr. Searcy.

We are of the opinion that the evidence clearly showed that appellant’s plea of guilty was entered voluntarily with full knowledge of its consequences. No basis for the relief sought has been presented. State v. Freedman, Mo.Sup., 282 S.W.2d 576, 581.

Other matters asserted in the motion are without merit. The complaint that the 50-year sentence is excessive affords no basis for relief in this proceeding, the punishment being within the limit authorized for murder in the second degree. Sections 559.030, 546.490, RSMo 1959, V.A. M.S. The information properly charges murder in the second degree and its amendment to change the offense charged from first degree murder to second degree merely reduced the offense charged to a lesser degree of the same crime and did not charge a new offense. The information is verified by the prosecuting attorney on his official oath. The prosecuting attorney must sign an information (Supreme Court Rule 24.01, V.A.M.R.) and the information need only have endorsed thereon the names of the witnesses (Supreme Court Rule 24.17, V.A.M.R.). They are not required to sign the information.

Finally, appellant’s claim that he could have been charged with a capital offense only by an indictment, and not by an information, is obviously without merit. Section 17, Article I, Constitution of Missouri, 1945, V.A.M.S. The requirement of the Fifth Amendment to the Constitution of the United States has no application to state procedure in this regard. Hurtado v. California, 110 U.S. 516, 534, 4 S.Ct. 111, 28 L.Ed. 232; State v. Cooper, Mo.Sup., 344 S.W.2d 72, 74(1-3).

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Melvin MELLER, Appellant.
    No. 50659.
    Supreme Court of Missouri, Division No. 2.
    Oct 12, 1964.

      Thomas F. Eagleton, Atty. Gen.,. George W. Draper, II, Gary A. Tatlow, Asst. Attys. Gen., Jefferson City, for respondent.
    Curtis J. Quimby, Jefferson City, for appellant.
   PRITCHARD, Commissioner.

Defendant was on December 5, 1963, convicted by a jury of the crime of stealing, as alleged in the information, a whitefaced steer of the reasonable value of $206.00, the personal property of George Seitz, A prior felony conviction and sentence and imprisonment therefor was also alleged in the information, which was admitted by defendant in person and by his counsel in open court. Thereupon the court made a finding that defendant was a person described in the Habitual Criminal Act, § SS6.2S0, RSMo 1959, V.A.M.S., and that he should be tried accordingly.

• After the verdict of the jury was received and on the same day the court made an assessment of defendant’s punishment at eight years. On December 12, 1963, defendant under apparent erroneous impression as to the court’s procedural action in assessing punishment (which is required by said Habitual Criminal Act) moved to vacate judgment and sentence under Supreme Court Rule 272d, V.A.M.R., stating the. reason therefor his belief that judgment had been entered and sentence passed which barred his right to file a motion for new trial. A motion for new trial was actually timely filed. We shall disregard the motion to vacate judgment and direct our review toward the matters properly preserved in defendant’s motion for new trial, and parts of the record specified in Supreme Court Rules 28.02 and 28.08, V.A.M.R., inasmuch as defendant has filed no brief herein.

The evidence relating to the theft charged against defendant is that George Seitz operated a farm in Cole County, near Center-town, Missouri, upon which he was raising cattle and hogs in March, 1963. On March 17, 1963, he had twenty head of whiteface cattle and a calf in his barn. A few days later he checked and a reddish whiteface steer was missing, weighing about 1100 pounds, worth more than $206.00. He did not give anybody permission to take the steer from his farm. ■ The defendant, Melvin Meller, had been on his farm quite a number of times before March, 1963.

The state’s case rested upon the testimony of defendant’s accomplices, Jim Fenton and Stanley Steinmetz, relating to the instantly charged theft of the one steer. Other acts of theft on other occasions were testified to by these witnesses, the testimony of Fen-ton being objected to one time by defendant at the trial upon the ground the other thefts were not charged, and had no bearing upon the one theft charged in the information. The alleged error in the court’s ruling in admitting the testimony of the other thefts is set forth in defendant’s motion for new trial.

Jim Fenton first testified that prior to March 17, in the first part or sometime in February, he and Stanley George Steinmetz had a conversation regarding the theft of livestock with defendant at his house about the 300 block on West McCarty Street in Jefferson City. Defendant then said that if they would steal cattle he would show them how to sell them. Fenton was then permitted to state (over the one objection) that on February 23, 1963, he stole one cow and one calf, and he, Steinmetz and defendant took them to Kansas City, Missouri, and sold them in defendant’s name. The check for this sale was mailed to defendant’s home, Steinmetz got it and the money was divided. On the night of February 25, 1963, Fenton and Steinmetz stole eight hogs in Callaway County, took them to a St. Louis, Missouri, stockyard, and defendant showed them how to get there and to sell them. Defendant received a part of the money from the sale of the hogs. On March 17, 1963, Fenton and Steinmetz went to the farm of George Seitz and there loaded the steer, the theft of which defendant was charged, into a pickup truck. They later met defendant, and the three of them drove to East St. Louis, Illinois, in two separate trucks, and sold the steer under the name of “Charles McHenry.” Fenton signed the name of Charles McHenry on the check and gave it to defendant who also signed it and cashed it, purchasing $40 worth of gasoline and giving Fenton and Steinmetz $20 each.

The testimony of Steinmetz concerning the thefts was substantially the same as that of Fenton. We do not set forth other evidence connecting defendant to the commission of the crime charged inasmuch as he does not question the sufficiency of the evidence to sustain the conviction.

Even if defendant’s single objection to the testimony of Fenton be treated as continuing and as directed to all of the testimony bearing on other offenses, his assignment of error with respect thereto has no merit. The testimony of his accomplices relating to offenses close in point of time, when coupled with the testimony of both Fenton and Steinmetz concerning the initial meeting at which it was agreed that if they would steal cattle he, defendant, would show them how to sell them, was admissible under State v. Fisher, Mo., 302 S.W.2d 902, 905 [2], and cases and authority there cited, to show knowledge, intent or design in the commission of the offense charged for which the defendant was on trial. For the reasons stated in State v. Fisher, supra, the testimony admitted constituted an exception to the general rule that evidence of other offenses is not admissible because such evidence violates defendant’s right to be tried for the offense for which he is on trial (see State v. Mobley, Mo., 369 S.W.2d 576). All of these acts to which Fenton and Steinmetz testified tended to show that defendant and his accomplices did in fact carry out their previous agreement to commit acts of theft and bore upon the commission of the theft actually charged. Assignment No. 1 is overruled.

By Assignment No. 2, defendant requests a new trial upon the ground that he had discovered new evidence to the effect that he did not travel with Fenton or Steinmetz from Jefferson City to the Sky Line Truck Stop, and that on March 17, 1963, both Fenton and Steinmetz had been at the Sky Line Truck Stop for a substantial time before he arrived. Both Steinmetz and Fenton testified that Steinmetz rode with defendant in his truck to the Skyliner, where they met Fenton who had driven another truck. This testimony could only have been of an impeaching nature, and the discovery of such evidence after a trial is no valid ground for the granting of a new trial. State v. Gish, Mo.App., 371 S.W.2d 654, 657 [6], and cases cited. See also State v. Pinkerman, Mo., 349 S.W.2d 951, 953 [4-6], as to the facts which must be shown and the procedure to be followed in order to secure a new trial upon the ground of newly discovered evidence, none of which was complied with by defendant. Assignment No. 2 is overruled.

Defendant complains in his Assignment No. 3 that the court erred in failing to instruct the jury as to the limited consideration (credibility of the witness) to be given to his testimony regarding his former convictions. No such instruction was requested by defendant. Supreme Court Rule 26.02(6), V.A.M.R., requires only that the court instruct the jury on questions of law necessary for their guidance in returning a verdict, and absent a request the court is not required to instruct upon a collateral matter such as this. State v. Bozarth, Mo., 361 S.W.2d 819, 829 [18]. Assignment No. 3 is overruled.

Defendant’s last assignment, No. 4, sets forth that the verdict is contrary to the law and “contrary to the law as applied to the evidence.” Such assignment is too general to preserve anything for review in that it does not set forth in detail and with particularity the specific ground or causes for the motion in accordance with the provisions of Supreme Court Rule 27.20(a), V.A.M.R. State v. Butler, Mo., 353 S.W.2d 698 [2]. Assignment No. 4 is overruled.

The information is sufficient; defendant was arraigned and was present throughout the trial in person and by counsel; the verdict is responsive to the charge contained in the information; assessment of punishment was duly made by the court in accordance with the Habitual Criminal Act; allocution was granted defendant, and judgment was entered, and the sentence of eight years’ imprisonment was within the limits of § 560.161, RSMo 1959, V.A.M.S. Defendant has had a fair trial.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Charles JOHNSON, Appellant.
    No. 49358.
    Supreme Court of Missouri, Division No. 2.
    Oct. 12, 1964.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Scott O. Wright, Sp. Asst. Atty. Gen., Columbia, for respondent.
    Robert R. Sandcork, St. Louis, for appellant.
   PRITCHARD, Commissioner.

Defendant was convicted by a jury on November 15, 1961, of the crime of rape and his punishment was assessed at 15 years’ imprisonment. The trial court then granted defendant 30 days within which to file his motion for new trial. The motion was filed on December 15, 1961. On February 2, 1962, defendant was before the court in person and by counsel at which time the sentence assessed by the jury was by the court reduced to 8 years. Defendant’s motion for new trial was argued and submitted to the court, and on the same day, February 2, 1962, was overruled, and defendant was sentenced to eight years in the Department of Corrections with allowance of the time spent by him in jail.

On February 14, 1962, defendant filed his notice of appeal in the trial court and copies were mailed to this court and to the Attorney General. The state has moved that defendant’s appeal be dismissed because the notice of appeal was not timely filed in accordance with Supreme Court Rules 28.03 and 82.04, V.A.M.R. We must sustain the motion to dismiss appeal. The filing of the notice of appeal within ten days after the final judgment or order appealed from is necessary to vest this court with appellate jurisdiction. The notice of appeal in this case was filed twelve days after the judgment became final upon its entry on February 2, 1962, after the overruling of defendant’s motion for new trial. No special order for appeal was made herein under Supreme Court Rule 28.07, V.A.M.R. Defendant has failed to take the vital step of timely filing of his notice of appeal in order to perfect the same. State v. Lowe, Mo., 365 S.W.2d 613, 614 [3], and cases there cited.

The appeal is dismissed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Major Antree JONES, Appellant.
    No. 50533.
    Supreme Court of Missouri, Division No. 2.
    Oct. 12, 1964.

      Thomas F. Eagleton, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.
    A. Robert Parelman, Kansas City, for appellant.
   EAGER, Judge.

This defendant was found guilty by a jury of the offense of assault with intent to kill, with a pistol. The element of malice aforethought, originally charged, was eliminated by amendment of the information. Defendant was represented by counsel throughout his trial and is so represented upon this appeal. The Court, finding a prior conviction, assessed defendant’s punishment at three years in the Department of Corrections, and sentenced him accordingly. The verdict was returned on September 18, 1963; a motion for new trial was filed on November 19, 1963. No extension of time is shown for the filing of that motion, but even had there been such an extension the time could not possibly have been extended for any period totaling more than forty days. Rules 27.20 and 31.02, V.A.M.R. This motion was clearly out of time. We shall consider those matters covered by Rule 28.02, which include the sufficiency of the information, the verdict, and the judgment and sentence. The motion for new trial attempts to raise three points: (1) that there was no credible evidence to support the verdict; (2) that the verdict was contrary to the law under the evidence; and (3) that the Court erred in overruling defendant’s objections to the applicability of the Habitual Criminal Act. We shall not consider (1) in the absence of a valid motion for new trial. In so ruling, however, we do not intimate that the evidence was insufficient. Assignment (2) would fall for the same reason but, in addition, it is wholly meaningless under our Rule 27.20. We shall consider assignment (3) as a matter raised on the information, verdict, and judgment. In State v. Kiddoo, Mo., 354 S.W.2d 883, the Court said, with reference to a similar contention: “These matters, reflected by the ‘information * * * verdict, judgment and sentence,’ appear ‘upon the record before (the court) ’ and must be considered even though they were not set forth in a motion for a new trial or otherwise called to the trial court’s attention. Sup.Ct. Rule 28.02, V.A.M.R.”

Under the circumstances, there is no point in making a statement of the evidence here. The information sufficiently charges the crime of assault with intent to kill with a deadly weapon. Its allegations include all necessary elements of § 559.180, RSMo 1959, V.A.M.S., except the existence of “malice aforethought,” which was eliminated by amendment. The amendment made § 559.190 applicable to the punishment. The elements so charged were: that defendant did “on purpose * * * make an assault * * * with a pistol” and “then and there feloniously, willfully on purpose * * * shoot * * * at, against and upon said Jimmie Nelson * * *” and wounded him, “with the felonious intent * * * him * * * to kill and slay * *

The verdict specifically found defendant “guilty of assault with intent to kill with a pistol.” This was entirely sufficient, since the case was merely submitted for a finding of guilt under § 556.280 (Laws 1959) and not for a determination of the term of imprisonment. Allocution was granted, and the fixing of the punishment by the Court, the judgment and the sentence were responsive to the verdict and are entirely sufficient. The only question remaining is the applicability of our second offense statute. Section 556.280, RSMo 1959, V.A.M.S.

On this question defendant’s contention is that the prior offense charged was “not necessarily a felony in this jurisdiction,” and that the Court should have sustained defendant’s objection to the introduction of such evidence. Defendant has not preserved in his brief or in his motion for new trial any objection to the form in which the evidence was offered. Our “second offense” statute provides, in so far as material here: “If any person convicted of any offense 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 committed a felony, he shall be tried and if convicted punished as follows: (1) If the subsequent offense be such that, upon a first conviction, the offender could be punished by imprisonment in the penitentiary, then the person shall receive such punishment provided by law for the subsequent offense as the trial judge determines after the person has been convicted.” When this statute is applicable the Court finds whether or not there has been a prior conviction and imprisonment; if he finds that there has been, then the jury merely finds the defendant’s guilt or innocence, and the Court assesses the punishment and sentences the defendant accordingly. The basic question here is whether, in the state of this record, the statute was applicable and the Court, rather than the jury, was required to assess the punishment.

Section 556.290 provides that the Act shall be applicable when the prior offense was committed in another state, district or territory, if it be one which would be punishable by imprisonment in the penitentiary if committed in this state. State v. Murray, Mo., 280 S.W.2d 809. Proof of a prior conviction or convictions under federal law is admissible under the act. State v. Johnstone, Mo., 350 S.W.2d 774, cert. denied 369 U.S. 877, 82 S.Ct. 1149, 8 L.Ed. 2d 280; State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 331.

The information here charged that defendant had, on the 11th day of October, 1954, been convicted of “a felony, to-wit: facilitate the transportation, concealment and sale of a narcotic drug of Heroin, Hydrochloride, violation of Secs. 2554(a). T. 26. USC Sec. 174, T. 21, USC, and thereafter was received at the Federal Penitentiary to serve a term of 3 years for said offense on October 7, 1954, * * (We note here that our present statute does not require allegation and proof of a discharge as did the prior statute; defendant here was specifically charged with a conviction and imprisonment.) Section 174 of Title 21, Fed.Code Ann. is, in its essential parts, as follows: “Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000. * * * Whenever on trial for a violation of this subsection the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.”

The federal act not only proscribes the actual importation, receipt, concealment, purchase and sale of any illegal narcotic drug, but it also makes it a crime to “facilitate” any such act. The information charged the latter crime and the Court found that defendant had been convicted of it, as disclosed by an exhibit received in evidence. The exhibit confirms the fact that defendant plead guilty to that crime, was sentenced to serve three years, and was incarcerated; and we may assume such from the Court’s finding, without reference to the exhibit. The term “facilitate,” as used in this act, has been described as follows in Vasquez v. United States, 9 Cir., 290 F.2d 897, at loc. cit. 899: “One may be convicted of transporting or facilitating the transportation of narcotics without having committed the act of selling. Torres Martinez v. United States, supra [1 Cir.], 220 F.2d [740] at 743. Here it was not necessary for the Government to prove actual transportation since appellants were only charged with facilitating transportation. The word ‘facilitate’ as used in section 174 means ‘to make easy or less difficult,’ ‘to free from difficulty or impediment,’ ‘as to facilitate the execution of a task.’ Bruno v. United States, 9 Cir., 259 F.2d 8, 10.” See also Bruno v. United States (C.A. 9), 259 F.2d 8. It is obvious that one might knowingly facilitate the sale, etc., of a narcotic without, per se, committing the complete crime himself. However, we see no essential difference between “facilitating” a crime and acting as an accessory to a crime, which under our § 556.170, makes one guilty as a principal. That section is applicable to all felonies, including those defined and proscribed in our Narcotic Act, §§ 195.010-195.270. The transportation, possession, manufacture or sale of any narcotic drug is made a crime by our law; for the first offense there may be a penitentiary sentence of up to twenty years (and greater if the offense involves the sale, gift or delivery of the drug). The defendant here was specifically convicted of facilitating “the transportation, concealment and sale of a narcotic drug * * There is certainly no substantial difference between that crime and the crime of being an accessory to the transportation, concealment and sale of a narcotic drug in Missouri. It is not necessary that the two crimes be identical in all particulars; it is sufficient if they are substantially similar. State v. Young, 345 Mo. 407, 133 S.W.2d 404. We rule here that this prior offense, if committed in Missouri, would have been punishable by imprisonment in the penitentiary; we further rule that the Court properly fixed the defendant’s punishment.

Counsel further contends that the provision of the federal act which provides that evidence of the possession of a narcotic is deemed sufficient for conviction unless explained, differentiates that act from the Missouri law; and that, hence, what might have been a crime under the federal law “might not necessarily be a crime under the Missouri Statute.” We fail to follow this argument. Section 195.020 of our law expressly provides: “It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this law, * * Thus possession alone is made an offense and the penalties of § 195.200 apply to the violation of “any provision of this chapter”; the permissible penalties include the imposition of a penitentiary sentence up to twenty years.

We find no error in the matters appearing of record, and the judgment is affirmed.

All of the Judges concur.

      . This section was left unaffected in the revision of 1959.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Earl Mack MALONE, Appellant.
    No. 50246.
    Supreme Court of Missouri, Division No. 1.
    Oct 12, 1964.

      Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
    Taken as submitted by appellant.
   HOUSER, Commissioner.

Earl Mack Malone was convicted of murder in the second degree and sentenced to 20 years’ imprisonment in the penitentiary. Defendant’s court-appointed attorney overlooked filing a motion for new trial within 10 days, as required by Supreme Court Rule No. 27.20(a). The trial judge thereafter suggested to the attorney that the motion could be filed out of time and made an order extending the time. This order, the validity of which is not challenged, was entered 27 days after the verdict was returned. A motion for new trial, filed on the last day of the extension period, was overruled after a hearing. Defendant’s attorney did not file a notice of appeal. Defendant, acting pro se, sought and obtained a special order under Supreme Court Rule No. 28.07 allowing the filing of a notice of appeal out of time, alleging that he requested his attorney to file a notice of appeal but that his attorney ignored his request.

Appellant having filed no brief in this court it is our duty to review all assignments of error properly preserved in the motion for new trial. There were five assignments of error, all directed at the verdict. It was alleged that the verdict “is against the evidence”; “is against the greater weight of the credible evidence in the case”; "is. against the law under the evidence”; “is excessive,” and “is so excessive as to show bias and prejudice on the part of the jury.” These assignments of error are insufficient and fail to preserve anything for appellate review because they are too general. State v. Herron, Mo.Sup., 349 S.W.2d 936; State v. Russell, Mo.Sup., 324 S.W.2d 727; State v. Daegele, Mo.Sup., 302 S.W.2d 20; State v. Thompson, Mo. Sup., 299 S.W.2d 468; State v. Jacobs, Mo.Sup., 321 S.W.2d 450; State v. Hood, Mo.Sup., 313 S.W.2d 661; State v. Jackson, Mo.Sup., 371 S.W.2d 309; State v. Gray, Mo.Sup., 360 S.W.2d 642; and State v. Velanti, Mo.Sup., 331 S.W.2d 542.

Our duty in this situation is to examine those matters in the record for which no assignment of error is required. Supreme Court Rule No. 28.02, V.A.M.R.

As originally filed the information charged murder in the first degree, under § 559.010, V.A.M.S. A charge of murder in the first degree includes the lesser offense of murder in the second degree. Prior to trial the prosecuting attorney reduced the charge to murder in the second degree. § 559.020, V.A.M.S. As thus reduced, the information is sufficient in form and substance to properly charge and to sustain a conviction of the crime of murder in the second degree. State v. Haynes, Mo.Sup., 329 S.W.2d 640

The verdict of the jury, as corrected by the trial judge in the presence of the jury (by changing the word “by” to “at,” so as to read: “We, the Jury, find the defendant, Earl Mack Malone, guilty of Murder in the Second Degree, and assess his punishment at 20 years in the State Penitentiary.”), was sufficient in form and substance. State v. Reagan, Mo.Sup., 108 S.W.2d 391, 395 [3]. It clearly found defendant guilty of the crime of murder in the second degree, and therefore was. responsive to the reduced charge. The in-' advertent use of the word “by” instead of “at” was an irregularity in form which was not material or fatal, State v. Sanders, Mo. Sup., 313 S.W.2d 658, 660 [5, 6], and did' not affect its validity. (See State v. Steptoe, 1 Mo.App. 19, where the verdict handed' in by the jury assessed the punishment “for ten years penitentiary.” The verdict certified in the transcript assessed the punish-' ment “at ten years in the state penitentiary.” The appellate court presumed that the verdict was shaped in proper form by the' direction of the court, with the jury’s consent.) Here the trial court properly amended the verdict in the presence of and with the consent of the jury by correcting this grammatical irregularity, which was a mere matter of form. State v. De Witt, 186 Mo. 61, 71, 84 S.W. 956, 959. It was the duty of the court to do so. State v. Thost, Mo.Sup., 328 S.W.2d 36. The failure of the verdict to recite that the jury found the defendant guilty “as charged in the information” did not invalidate the verdict. State v. Saussele, Mo.Sup., en banc, 265 S.W.2d 290, 294; State v. Feeney, Mo.Sup., 226 S.W.2d 688; State v. Wright, 342 Mo. 58, 112 S.W.2d 571. The omission of the word “imprisonment” is immaterial. State v. McIntosh, Mo.Sup., 333 S.W.2d 51. The punishment assessed by the jury and imposed by the court, 20 years (imprisonment) in the penitentiary, is within the limits prescribed by law for murder in the second degree. § 559.030, V.A.M.S.

Defendant was arraigned and pled not guilty. The court appointed an attorney to represent defendant. The record shows that the attorney was present throughout the trial, at the presentation of the motion for new trial, and at the time sentence was' passed. Defendant was granted allocution. The judgment rendered was responsive to the issues and the verdict. .

Although the foregoing examination dischárges our duty on this appeal we have read and examined the entire transcript pursuant to our discretionary authority under Supreme Court Rule No. 27.20(c), to determine whether during this trial there occurred any plain errors affecting the sub-stántial rights of defendant which, although not raised in the trial court or preserved for' review, have resulted in a manifest injustice or miscarriage of justice. We exercise this power sua sponte in this case because of the general tenor of the post-trial proceedings, in which defendant’s court-appointed attorney- failed to file a motion-for new trial within the time prescribed by law, failed to raise a single reviewable point in the motion for new trial tardily filed, and ignored his client’s request to file a notice of appeal. State v. Goodwin, Mo.Sup., 352 S.W.2d 614, 619 [1].

We will first consider the sufficiency of the evidence to support the verdict There was evidence from which the jury could have found these facts: Defendant had been “going with” one Annie for four years. Annie had been living with defendant in an apartment as his common-law wife until approximately seven months before the shooting. Annie had a child by defendant. They were not married. On the day in question Annie, in company with her mother and her cousin Dorothy, went to Anthony’s Grill and Bar on east 18th Street in Kansas City. Annie was searching for defendant. Outside the bar they encountered Earl Lockett, a person known to Annie’s mother but not to Annie. Lock-ett spoke to Annie and her mother and invited them in the bar for a drink. The three women entered, sat at a table, and beer was ordered. Seated at the table were the three women, Lockett, and another man who was never identified. After the beer was “poured” and at a time while they were laughing, defendant entered the bar. Defendant and Lockett were not acquainted with each other. Defendant went to the back of the establishment, got a beer, and then went to the table where Annie was seated, asked her how she felt, and if she was doing all right. After she had answered him the defendant told Annie in a low voice that he would give her three minutes to get out of the place. Defendant turned and went to the bar and started to drink his beer. Annie told her mother what defendant had said, and her mother told Lockett. Lockett asked who defendant was and said either “Who is he talkin’ to?” or “Who is he, talkin’ to me like that?” Annie’s mother told Lockett that defendant was not talking to him, and to sit down. She held onto his hand.- Lockett got up, walked around the table to the chair where Annie was sitting, and asked defendant if he was talking to him. While Lockett was standing there, some 12 feet from defendant, defendant “whirled around right quick and got his gun out of his pocket” and fired a shot. There were no threats or other conversation preceding the firing of the gun. Lockett had no gun or other weapon in his hand. There was evidence that Lockett was not seen with his hands in his pockets. The shot did not strike Lockett, but hit the window. Lockett’s arms were raised; he “held up his hand like he was asking a question or something,” begged defendant not to shoot him, and asked defendant “Why would you shoot me ? I haven’t did anything. I don’t even know these people.” After the shot was fired an employee at the tavern ran to defendant, struggled with defendant for possession of the gun, and begged him not to shoot any more. Defendant struggled loose from the employee’s grasp and fired three more shots. One of the three subsequent shots, probably the second of the three additional shots, struck Lockett in the left chest. Lockett staggered out of the tavern, fell, and died from the bullet wound' Defendant was subdued and disarmed. Right after the shooting defendant said to Annie: “I’m going to kill you, too.” When asked why he shot Lockett defendant told one officer that he “was mad.” He told another officer that “this man was coming * * * on me with his hands in his pockets and I thought he had something, so I shot him.” The foregoing constitutes substantial evidence to support the verdict.

Defendant took the stand, admitted the shooting, but claimed that he shot in self-defense. He testified that he talked to Annie at the table, urged her to “come on and go home”; that Lockett asked him “what did I want at this table”; that Lock-ett made the threat that defendant “wasn’t going to get anyone from the table”; that defendant told Lockett he was not talking to him, whereupon Lockett got up from the table with his hand in his pocket and that defendant backed away from him; that Lockett walked toward defendant, advancing upon him; that defendant told Lockett to “get back I wasn’t talking to him,” but Lockett kept coming towards defendant; that eventually defendant fired one shot at Lockett’s feet and another to his side to stop him but that Lockett kept advancing; that defendant did not know what Lockett was going to do to him and that when Lockett started to take his hands out of his pockets, defendant shot in self-defense, while still backing toward the rear of the bar. Three of the state’s witnesses testified to facts which, if believed, would have corroborated the theory of self-defense: that Lockett walked toward defendant, who backed away and warned Lockett “Get back off of me,” and that Lockett did not stop but continued advancing and was walking forward and toward defendant when he was shot. The verdict of the jury, however, is conclusive under evidence tending to sustain opposing theories, State v. Sharp, 183 Mo. 715, 82 S.W. 134, where no error in the instructions or the rulings on the evidence is shown. State v. McMullin, 170 Mo. 608, 71 S.W. 221. In such case the verdict will not be set aside as without evidence to support it. State v. McKenzie, 177 Mo. 699, 76 S.W. 1015. Instructions were given on murder in the second degree, manslaughter, self-defense, presumption of innocence, reasonable doubt, intent and credibility of the witnesses. The instructions, reviewed, reveal no errors prejudicial to defendant. Nor do the rulings on the admission and exclusion of evidence disclose any errors prejudicial to defendant.

There is no ground for interference with the judgment of the circuit court and the judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: COIL, Commissioner.

text:
    STATE of Missouri, Respondent, v. Eddie B. JOYNER, Appellant.
    No. 50326.
    Supreme Court of Missouri, En Banc.
    Oct. 12, 1964.
    Thomas F. Eagleton, Atty. Gen., Thomas E. Eichhorst, Asst. Atty. Gen., Jefferson City, for respondent.

      Eugene E. Reeves, Caruthersville, for appellant.
   COIL, Commissioner.

Eddie B. Joyner was convicted of rape by carnally and unlawfully knowing a female child under the age of sixteen and sentenced to thirty-five years in an institution to be designated by the Department of Corrections. Section 559.260, RSMo 1959 and V.A.M.S. He has appealed and contends that the trial court erred in admitting in evidence an oral confession allegedly made by him for the stated reasons that the confession was not voluntary but was obtained “as. a result of mental and physical coercion” in violation of the due process clause of the Fourteenth Amendment.

Inasmuch as there is no contention that the state failed to make a submissible case independent of defendant’s' alleged oral confession, a general statement of the evidence, other than that relating to the confession, will suffice.

Prosecutrix, a white girl, fifteen at the time of trial, had known defendant for two years, arranged to meet him (as she had done on several prior occasions when she had had intercourse with him) on the night of October 11, 1962. There was an argument, defendant beat her, threatened to kill her, and then had sexual intercourse with her.

At the request of defendant’s counsel, the court conducted a hearing out of the presence of the jury to determine whether the alleged oral confession was as a matter of law involuntary. Apparently only two of the officers who arrested and questioned defendant were interrogated at that hearing. Those same officers, the defendant, and a third officer testified (in rebuttal) in the presence of the jury. We shall examine all the evidence relating to the confession which was before the trial court, both in and out of the jury’s presence, and consider the “totality of the circumstances” in determining whether that evidence conclusively shows the alleged confession was involuntary. If the evidence so shows, it is the duty of this court to hold that it was inadmissible as a matter of law. State v. Statler, Mo., 331 S.W.2d 526, 530 [7-9],

Richard Pankey, a deputy sheriff of Pem-iscot County, testified that as a result of a complaint filed by the father of prosecu-trix he arranged to meet two members of the Missouri Highway Patrol, Roy Jones and Bill Kiefer, about eleven o’clock on the night of October 15, 1962, and with them drove to defendant’s house. Pankey went to the front door, the patrolmen remained outside. Upon identifying himself, Pankey was invited in, found defendant in bed and told him that he was under arrest, asked him to put on his clothes and go with him to the sheriff’s office. Pankey also asked whether defendant had a gun; he said he did, took it from someplace in the bed, and gave it to the deputy. Pankey and the witness occupied the rear seat in an automobile and the two patrolmen were in the front seat. No conversation concerning the offense for which he was arrested was had on the way to the jail. They arrived at the sheriff’s office around midnight and defendant was taken to the “identification” room (where there was a camera for making police photographs) which was about 8 x 10 feet. Defendant sat on a stool in front of the camera. All three of the officers were armed at the time of the arrest and at the interrogation and the pistols of the patrolmen and perhaps of the deputy sheriff were visible during the questioning. All three officers participated in questioning defendant and all three were at times two or three feet from him and could have touched him. The deputy sheriff testified further that the questioning consumed 20 or 30 minutes; that there were no threats or promises made to defendant; that no violence of any kind occurred; that defendant was not mistreated in any way; that no promises of leniency were made to defendant; that neither he nor either of the patrolmen said they would take defendant out and run him down the ■street with a shotgun; that the statements defendant made were voluntary and of his own free will.

Pankey testified that after introducing himself and the troopers, he informed defendant of the charge for which he had “been arrested and told him that they were investigating the complaint made by prose-cutrix to the effect that he had had sexual intercourse with her and that he tried to explain “statutory rape” to defendant; that he then asked defendant if he had done the things the prosecutrix had accused him of and defendant said that he had; that defendant said he had beaten prosecutrix with a hose, had held a gun against her, and after that had had sexual intercourse with her; that the gun he had turned over to the deputy at the house was the same gun he had held against the girl; that he had had sexual intercourse with prosecutrix at times during the period from April or May 1961 ■until the time of his arrest except for the time when prosecutrix and her family lived in Florida; that he and prosecutrix had prearranged signals as to when and where to meet; that neither the deputy nor the patrolmen explained that defendant had the right to counsel or that he had a right -not to make any statement; that no written statement was taken and no notes of the conversation were made; that defendant ■seemed nervous when they first began talking with him but he was not hysterical or frightened and spoke rationally; and that no one touched defendant to the witness’s ■knowledge.

Trooper Roy Jones testified that he was present during most of the questioning; "that all three of the officers were at times standing or sitting close enough to have ■touched defendant but that none of them put their hands on him; that the interrogation consumed fifteen or twenty minutes; that no notes were taken or record made; that defendant did not appear fearful hut appeared nervous and was evasive; that no one spoke of a shotgun and no threats were made against defendant and no promises made to him. Jones testified further that the next day, October 16, he took.defendant from the county jail to the prosecuting attorney’s office where Jones and the assistant prosecuting attorney were present. Defendant was there asked whether anyone had mistreated him the night before or at any other time and defendant replied that he had been treated fairly. Jones said that the assistant prosecuting attorney advised defendant that anything he might say might be used against him and that the statements defendant made at the further interrogation on the 16th were voluntary and made of his own free will and accord. Defendant said on the 16th that he was familiar with the charge made against him, realized he was in trouble and was going to try to cooperate in every way “to get the matter straightened out.” Defendant stated that he had met the prosecutrix on the night in question by prearrangement; that he had accused her of seeing another boy which she denied; that he hit her six times with a green garden hose, then took a pistol and said, “I should kill you,” that she pleaded with him to let her go and after they had sexual intercourse she left; that he and prosecutrix had been having sexual intercourse at times since April or May 1961 and defendant went into the detailed circumstances under which he had met prosecutrix the first time he had sexual intercourse with her.

Defendant, a Negro, 42 years of age at trial time, testified that he had been born in Mississippi and had lived there until 1945 when he came to Pemiscot County, Missouri, where he stayed until 1955; that in 1955 he went to Michigan for a short period but returned the same year and had lived in Pemiscot County ever since; that he had always done farm work or work connected with “scrap iron”; that he had been married 23 years; that he had had no education; that he had been raised on a farm as one of twelve children. He testified further that he had known prosecutrix about two years; that their houses were next to each other at Cooter, Missouri; that he had seen her on several occasions when she lived next door but that he had never had occasion to pick her up for anybody or take her any place and had never had sexual intercourse with her; that he knew the prosecutrix’s parents; that he knew that she had worked in crews which he would pick up for the purpose of picking cotton.

Defendant testified further that his arrest occurred essentially as described by the deputy sheriff, except that defendant said that at the time of his arrest and during the trip to and apparently including the time of the interrogation was “about the scarest time I ever had in my life * * ; and except also that he testified that the deputy sheriff indicated that they were arresting him because someone had stolen a station wagon on Black Island. Defendant testified that he had never before been charged with or convicted of any crime; that when he got to the little room at the jail the deputy sheriff was on his left and one of the troopers was sitting in front and one ■ on the other side; and they started asking him questions about the stolen station wagon and then they asked if there was something else he had been doing for a long time and had become too careless with, and he said one of the patrolmen told him to stand up and he “reached me and caught me on this side of the face and drew his hand back, and asked me if I wanted him to slap my face in, and I said ‘No, sir.’ I almost liked to went out.” Then the trooper asked him to name the white people he knew and when he came to prosecutrix’s name the officer stopped him and kept continuously asking whether he didn’t whip prosecutrix or have intercourse with her and he told them “ ‘No,’ and that was the time he caught me on the face and I said, ‘Yes.’ ” He didn’t say anything about anyone hitting him to the assistant prosecuting attorney the next day “but one of the same ones, the same men that whipped me and I was afraid to.” He testified that he was afraid and what scared him so much was that after the officer’s hand was on his face, they said “We will get those sawed off shotguns and put him out the door and start him running.” He identified the man who said that and the one who “caught me on the face” as Trooper Kiefer. Defendant explained what he meant by having been caught on the side of the face: that the trooper “caught me on the side of the face, like this and — Q. What do you mean, caught you on the side of the face? A. With his hand. Q. He slapped you? A. No, sir. Q. Pushed you? A. No, sir. He asked me did I want him to smash my face in, and I told him, ‘No, sir’ and one of them spoke up and * *

The state called the third officer, Patrolman Kiefer, in rebuttal, who testified that he was present in the identification room when defendant was questioned and that he had heard the defendant’s testimony on the stand; that he, the officer, had made no threats toward defendant whatsoever. “Q. Did you touch him in anyway? A. Yes, sir. I was questioning him and he was to the point where he was admitting— Q. What ? A. He was to the point where he was admitting having intercourse with the * * * girl, and he turned his head down to his side like this, and this was merely a touch, and I touched his jaw to turn him around to look me in the eye when I was talking to him, and just a touch. Q. Did you say anything to him when you did that? A. I asked him to look me in the face — to look me in the eye and he turned his head to the side. Q. Did you touch him any more other than that ? A. No, sir. That was the extent of it. Q. Will you come over here and touch me and touch me the way you did him ? A. Yes, sir. * * * Q. Touch me and show me. A. I reached around and turned his head around like that. Q. Now, on your oath did you do it any harder than that? A. No, sir. Q. Was anything said about a shotgun or shotguns or turning him outside, and something about a shotgun? A. To my knowledge I never heard that mentioned all night.”

in support of his contention that the trial court erred in admitting the oral confession in evidence, defendant argues that it was made on the night of the arrest “in an atmosphere of substantial coercion.” He cites only the case of Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, and an annotation on the subject of the admissibility of pretrial confessions in criminal cases in 4 L.Ed.2d, p. 1833. As we read defendant’s brief and as we understood the oral argument, the Haynes case and the cases cited in the annotation, supra, are to support the general propositions that the question whether an alleged “confession” is freely and voluntarily made is to be determined by an examination of the circumstances under which it is given and “the true test of admissibility * * * js whether or not the confession is made freely, voluntarily and without compulsion or inducement of any sort.”

We agree that the Haynes case, supra, reiterates the proposition that the question whether an alleged confession is voluntary is to be determined by an examination of all the circumstances under which it was given. We point out, however, that the Haynes case recognizes that evidentiary conflicts relating to the facts on which defendant’s claim of coercion is based are resolved by the triers of fact, i. e., by the state’s adjudication. Haynes v. State of Washington, supra, 373 U.S. 504, 514, [6-10], 515 [12-15], 83 S.Ct. 1336, 10 L.Ed. 2d 513; Thomas v. Arizona, 356 U.S. 390, 402, 403.

The rule in Missouri, while recognizing that the state has the burden to prove the voluntariness of a confession which is made to police officers while a defendant is in custody, is that if there is substantial evidence' tending to prove. that a confession is voluntary the issue of vol-untariness is for the jury. State v. Statler, supra; State v. Williams, Mo., 369 S.W.2d 408, 419[7]; State v. Bridges, Mo., 349 S.W.2d 214, 219 [4],

Defendant’s position with' respect to his contention that the confession in this case was, as a matter of law, not voluntarily given may best be demonstrated by this paragraph from his brief: “It is submitted that the uniforms, weapons, instruments of crime detection present in the examining room, extremely small size and crowded conditions of the room, the proximity of the three policemen to defendant, defendant’s race, his lack of education, his background, the time when the events occurred, his lack of experience with criminal charges, are all circumstances which lead one to look carefully at the question of whether or not defendant in this case freely gave the oral confession on the night of his arrest.”

In addition, defendant relies upon the undisputed testimony that one of the officers did touch him which he contends constituted a battery.

We have heretofore related in rather minute detail the testimony relating to the confession. We point out that according to the testimony of all three officers, defendant, while nervous, did not appear to be hysterical or frightened; that the questioning consumed only 20 or 30 minutes; • that there were no threats made and that .no violence of any kind occurred; that no promises were made to defendant; and that defendant was not mistreated in any way. It is true, as defendant contends, that Patrolman Kiefer took the stand in rebuttal and, even though the other two officers had •testified in effect that no one had placed a hand- upon defendant, Officer Kiefer admitted that he did touch defendant’s jaw to cause defendant to turn his head so that he would be looking at the questioning officer. The record shows that the manner in which that was done and the degree and extent of the touching -were demonstrated to the court and jury. We cannot tell from this record what that demonstration showed, but a reasonable conclusion (based upon the testimony heretofore quoted) is that this touching, which did not occur, according to the officer, until defendant was in the process of admitting that he had intercourse with the prosecutrix, did not necessarily and as a matter of law amount to physical coercion leading to the confession. Defendant stated what he meant by his testimony that the officer “caught me on this side of the face.” He said he meant that the officer caught the side of his face with his hand, that the officer did not slap him or push him. Furthermore, defendant’s testimony supports the conclusion that the thing which amounted to coercion, according to defendant, was not the touching of his face but the threat or question which accompanied it: “* * * did I want him to smash my face in?” But, as noted, all three officers testified that no threats of any kind were made.

The suggestions in defendant’s brief that the deputy sheriff showed a remarkable memory for details of oral statements taken six months previously when no notes of any kind had been made, the fact that Officer Kiefer did not take the stand except in rebuttal and testified, as to the touching, contrary to the testimony of the other officers, as well as the uniforms and visible weapons of the officers, the age, race, education and background of the defendant, were all facts and circumstances for the consideration of the jury in resolving the question whether the confession was made freely and voluntarily. The court submitted the issue by an instruction about which there is no present complaint.

Inasmuch as there was substantial evidence that defendant’s oral confession was freely and voluntarily given, we properly may not say, as a matter of law, upon a consideration of the “totality of the circumstances,” that the alleged confession was involuntary or was obtained “as a result of mental and physical coercion.”

It follows that the trial court did not err in admitting in evidence defendant’s alleged oral confession. State v. Staffer, supra; State v. Bridges, supra; State v. Williams, supra.

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

The judgment is affirmed.

PER CURIAM.

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

All concur.