author: FINCH, Judge. DONNELLY, Judge PER CURIAM.

text:
    Godfrey P. PADBERG, Samuel B. Murphy, Arthur S. Margulis and Harry N. Softer, Members, All constituting the Board of Election Commissioners of St. Louis County, Missouri, Plaintiffs-Respondents, v. Lawrence K. ROOS, County Supervisor, John O’Hara, Maurice Osborn, Gerald A. Rimmel, Edward E. Murphy, Jr., Brainerd W. La Tourette, Jr., Boris M. Martin and Maurice L. Stewart, Members of the County Council, Dorothy Wilson, County Clerk, and St. Louis County, Missouri, a Municipal Corporation, Defendants-Appellants.
    No. 51138.
    Supreme Court of Missouri, En Banc.
    April 11, 1966.
    Rehearings Denied July 11, 1966.

      Norman Barken, St. Louis, for respondents Padberg, Murphy, Margulis and Softer, all constituting Board of Election Com’rs of St. Louis County.
    John H. Lashly, St. Louis, for respondents John O’Hara, Maurice Osborn and Boris M. Martin, members of St. Louis County Council.
    Donald J. Stohr, St. Louis County Counselor, Joseph B. Moore, Deputy County Counselor, Clayton, for defendants; Norman C. Parker, St. Louis, special counsel.
   FINCH, Judge.

This is an appeal from a declaratory judgment which held that two ordinances proposing charter amendments to the Charter of St. Louis County (herein referred to as the Charter) did not receive sufficient votes for passage and submission to a vote of the people.

Since March 1950, St. Louis County has been a charter county. Its Charter was adopted pursuant to the Constitution of Missouri, 1945, Article VI, Sections 18(a)-(l), V.A.M.S. Amendment is covered in Article VIII of the Charter. Section 82 thereof provides three methods of amendment. One of these, Section 82(2), is “By ordinance adopted by the Council and submitted to the voters at a general or special election and approved by a majority of those voting on the proposition.”

In September 1964, Ordinance 3345, proposing amendment of the Charter to make the office of County Highway Engineer appointive rather than elective, and Ordinance 3346, to amend by extending the merit system to certain employees, were introduced in the County Council, which is the governing and legislative body of the County. The ordinances received four yea and three nay votes, both were approved by the County Supervisor, the executive officer of the County, and then certified by the County Clerk -to the Board of Election Commissioners to be submitted to the voters on. November 3, 1964.

When the two ordinances were received by the County Board of Election Commissioners it took the position that the ordinances had not received a sufficient number of votes for passage and were invalid and should not be submitted to a vote of the people. The members of the Board instituted an action for declaratory judgment to determine whether or not the ordinances had been validly'passed for submission to the voters. The three Councilmen who had voted against the adoption of these two ordinances filed an answer, counterclaim and cross claim in which they asserted the invalidity of the ordinances. The County, the County Council and the County Supervisor filed an answer and a counterclaim seeking a mandatory injunction requiring the submission of the ordinances to a vote by the people. Our disposition of the case does not require a detailed recital of these rather complex pleadings.

A question was raised as.to the right of the Board of Election Commissioners to maintain this action. It is urged that they were acting in a ministerial capacity only in submitting these proposals to the voters and that they had no right to go behind the ordinances to test the validity of their passage. We are of the opinion that the Board was entitled to file and maintain this action. Civil Rule 87.02, V.A.M.R. and Section 527.020 (all references to statutes are to RSMo 1959, V.A.M.S.) specifically provide for declaratory relief with respect to municipal ordinances and questions of construction or validity thereof. The case of Kansas City v. McGee, 364 Mo. 896, 269 S.W.2d 662, involved a declaratory judgment action by Kansas City and its Mayor and Council against members of a committee who had filed an initiative petition with the Council. The question to be adjudicated was whether the City Council was justified in refusing to submit the proposal to the people for a vote. The court did decide the question presented and held that the initiative petition proposing such ordinance was fatally defective and need not be submitted to a vote as proposed in the initiative petition. We think it is clear that the trial court in this instance was correct in overruling the motion of appellants to dismiss the petition herein on the ground of lack of capacity of the Board to maintain the action.

There are seven members of the County Council. Appellants contend that these ordinances proposing charter amendments, fixing the form of ballot, and providing for submission of the charter amendments to a vote of the people require only a majority vote, which would be four affirmative votes. It is respondents’ contention that five votes were necessary for passage.

It will be noted that Section 82(2) provides simply for amendment by ordinance adopted by the Council (and the approval of the voters). The section does not specify the vote by which such amendment must be passed by the Council. If Section 82 had stated specifically, the number of votes required for passage, the section would have been complete within itself and there would have been no room for doubt. It does not so specify, however, and hence it is necessary to look elsewhere in the Charter to determine that question.

Appellants rely upon Section 13 of Article III of the Charter. It deals with ordinances and resolutions generally and includes the following; “An affirmative vote by a majority of the members of the entire Council shall be necessary to pass any ordinance or resolution except as otherwise provided in this charter.” Appellants maintain that this charter provision, which applies to ordinances generally, applied to and governed the vote required on the proposed charter amendments. Respondents, on the other hand, rely on Section 18 of Article III, which is as follows:

“Emergency ordinances shall require the affirmative vote of not less than five members of the Council and shall take effect immediately upon their enactment. Emergency ordinances shall be those ordinances relating to the following:

“(1) Calling an election or providing for the submission of any proposal to the people;

“(2) Appropriations for the support of the County government and the payment of principal and interest on the County’s debts;

“(3) Borrowing of funds in anticipation of taxes;

“(4) Fixing tax rates;

“(5) Amendments to the zoning ordinance, provided that a general revision of the zoning ordinance shall not be deemed to be an emergency ordinance;

“(6) The immediate preservation of the public peace, health, safety and welfare, in which ordinance the emergency has been declared.”

Respondents assert that the charter amendment ordinances provided for submission of these proposals to the people and fall within the language of Section 18(1), making them emergency ordinances which required five affirmative votes.

The question we must determine is whether passage of charter amending ordinances referred to in Section 82 contemplates passage by majority vote as provided for ordinances generally in Section 13 or whether they are to be treated as emergency ordinances under Section 18, thus necessitating five affirmative votes. This involves first a determination of whether provisions of the Charter relating to emergency ordinances are even applicable to the process of charter amendment, and secondly whether, if applicable, these ordinances were in fact emergency measures. Of these in order:

What is the nature of the act of a legislative body in proposing constitutional amendment? Do procedural requirements specified in the constitution (or charter) with respeet to legislation generally apply to the handling of proposed constitutional amendments ? Do provisions such as ones for all acts or resolutions to be submitted to the executive officer for approval or veto, ones specifying the number and times of reading, and ones as to the title requirements of the statute being considered apply to the constitution amending process?

Exactly this question arose in the early case of Hollingsworth et al. v. State of Virginia, 3 Dall. 378, 1 L.Ed. 644, decided in 1798. It involves the question of whether the Eleventh Amendment to the Constitution of the United States had been adopted. This amendment had been proposed by two-thirds of both the Senate and House of Representatives pursuant to Article V of the Constitution and subsequently had been ratified by the required number of states. The attack on the amendment was on the basis that Article I, Section 7, of the Constitution also was applicable and had not been followed. That section provides, in part, as follows:

"Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall he presented io the President of the United States; and before the Same shall take Effect, shall'be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.” (Emphasis supplied.)

It was pointed out that the Resolution, following passage by both houses of Congress, had not been submitted to the President of the United States, pursuant to said Section 7 of Article I which specified that every order, resolution, or vote (except on a question of adjournment) should be so submitted. When the case was argued in the Supreme Court of the United States and this proposition was advanced, Mr. Justice Chase stated, “There can, surely be no necessity to answer that argument. The negative of the President applies only to the ordinary cases of legislation. He has nothing to do with the proposition, or adoption, of amendments to the Constitution.” The court, in a unanimous opinion, held that the Eleventh Amendment was constitutionally adopted, thereby establishing the principle that when a legislative body is acting in a constitution making rather than a legislative capacity, the provisions of the Constitution relating to requirements applicable to legislation do not apply.

This same basic principle has been followed in the decisions of this state. In State ex inf. McKittrick, Atty. Gen. ex rel. Ham v. Kirby et al., 349 Mo. 988, 163 S.W.2d 990, this court considered the validity of an amendment to the Charter of the City of St. Louis. The Board of Aldermen had proposed an ordinance entitled: “An Ordinance submitting a proposed amendment to the Charter of the City of St. Louis to the qualified voters of the city, and providing for an election to be held therefor, and for the manner of voting thereat, and for the publication of this ordinance.” Section 13 of Article IV of the Charter of the City of St. Louis provided that, “No bill, except a general appropriation bill, which shall only embrace matters on account of which moneys are appropriated, shall contain more than one subject, which shall be clearly expressed in its title.” (Emphasis supplied.) It was contended that the ordinance proposing the charter amendment “was invalid because the title did not specify the contents of the proposed amendment.” This court then said, 163 S.W.2d 1. c. 993: “We are therefore confronted with the question as to whether the requirements of the charter applying to the titles of ordinary ordinances have any application to the titles of ordinances, resolutions or other legislative actions submitting to the voters a proposed charter amendment.” The court points out that the Charter provision of the City of St. Louis for initiation of amendments, followed by a vote of the people, was similar to the method contained in the Missouri Constitution and in the constitutions of a majority of the states. The court then observes, 163 S.W.2d 1. c. 993: “In construing such provisions it has been universally held that the legislature, in proposing an amendment, is not exercising its ordinary legislative power but is acting as a special organ of government for the purpose of constitutional amendment. State ex rel. [City of Memphis] v. Hackman, 273 Mo. 670, 202 S.W. 7; Edwards v. Lesueur, 132 Mo. 410, 33 S.W. 1130, 31 L.R.A. 815; People ex rel. [Stewart] v. Ramer, 62 Colo. 128, 160 P. 1032; State v. American Sugar Refining Co., 137 La. 407, 68 So. 742; Re Opinion of the Justices, 118 Me. 544, 107 A. 673, 5 A.L.R. 1412. In the Lesueur case we held that the constitutional requirement applying to ordinary bills that they be read three times before final passage did not apply to a joint and concurrent resolution submitting a constitutional amendment. In Cooney v. Foote, 142 Ga. 647, 83 S.E. 537, Ann.Cas. 1916B, 1001, it was directly held that the constitutional requirement in regard to the title of legislative bills had no application to joint and concurrent resolutions submitting constitutional amendments.” The court held that the charter provision relative to the title to all bills had no relation to charter amendment.

The case of State ex rel. Jones v. Atter-bury, Mo:, 300 S.W.2d 806, did not involve the constitution making or amending'process, but it does illustrate further the fact that constitutional provisions dealing with legislative activity.are limited to acts of the Legislature performed in its legislative capacity and do not apply to actions when the Legislature is acting in a nonlegislative capacity. The Atterbury case involved mandamus to compel the Comptroller to approve expenses incurred by an interim legislative committee member. A joint committee on juvenile delinquency was created by a concurrent resolution adopted by both houses of the General Assembly. The validity of the resolution was attacked on the basis that its adoption was in violation of provisions of the Missouri Constitution because the resolution was not presented to the Governor for his consideration and was not proceeded upon as in the case of a bill. Specifically, it was contended that Article III, Section 31, and Article IV, Section 8, were violated.

The court discusses the history of these provisions and concludes that joint resolutions, as that term is used in Article III, Section 31, and concurrent resolutions, as used in Article IV, Section 8, are those resolutions which have the force and effect of law. The court then concludes that the concurrent resolution in question was administrative or procedural in character, that it did not have the force and effect of law, and that its submission to the Governor was not required by the constitutional provisions in question. In so holding, this court recognized that while the two constitutional provisions used general, all inclusive language, they pertained only to acts of the Legislature when acting in its legislative capacity. This is in harmony with the earlier decisions in Missouri hereinbefore discussed and with the conclusion of the Supreme Court of the United States in the Hollingsworth case wherein such provisions (presentation to the executive for signature, having a proper title, reading the resolution on three different days, etc.) were held to have no application to resolutions or proposals to amend the Constitution.

The Charter of St. Louis County is before us in this case and we observe that Section 16 of Article III provides that all ordinances passed by the Council shall be submitted to the County Supervisor, who is the executive officer of the county. It provides a right of veto and for a method of passing ordinances over the veto of the Supervisor. It would seem obvious, under the doctrine of Hollingsworth, Lesueur, Kirby and Atterbury, that this section has application to legislation making but would not apply to the process of amending the Charter. This is true even though the section uses the language “all ordinances.” It appears that the County Supervisor did in fact affix his signature to the two ordinances proposing the charter amendments but this was unnecessary. If he had not approved them (whether not submitted to him at all or he vetoed) this would not have affected the validity of the proposed charter amendments. Such provisions as Section 16 apply only to the legislative process. The earlier cases discussed eompel this conclusion. We could not decide otherwise without overruling those cases.

We also observe that Section 17 of Article III of the Charter specifies the effective date for all ordinances other than emergency measures (unless a notice of intention to circulate referendum petitions is filed in the manner prescribed, in which event the effective date of the ordinances is postponed for a period of time to permit circulation and filing of referendum petitions). This provision relative to suspension for referendum likewise is not applicable to the constitution making process. This is the necessary result of our holding in State ex rel. Tate v. Sevier, 333 Mo. 662, 62 S.W.2d 895, 87 A.L.R. 1315. The General Assembly had passed a bill calling an election for the purpose of electing delegates to a state convention to vote upon ratification of a proposed amendment to the Constitution of the United States. A petition was filed with the Secretary of State asking that said bill be referred to the people for their approval or rejection as provided by the referendum provisions of the Constitution and statutes of Missouri. The Secretary of State refused to accept the petition and a proceeding in mandamus was filed to compel him to accept the filing. In denying the writ of mandamus, Judge Frank, speaking for this court en banc, pointed out that the Legislature in this activity in connection with ratification of a proposed amendment to the federal Constitution was not acting in a discharge of its legislative duties. The court then said, 62 S.W.2d 1. c. 898: “It therefore follows that when the Legislature enacted House Bill 514, which provides the method for assembling a convention, it was not, strictly speaking, performing the functions of a legislative body for the state, but was acting as a representative of the people, pursuant to authority delegated to it by the federal Constitution to provide a method for obtaining and assembling conventions to represent the people in ratifying or rejecting proposed amendments to the federal Constitution. Such enactment was, therefore, not lawmaking for the state, and for that reason is not subject to the referendum.

“Without doubt the enactment of House Bill 514, providing for the assembling of the convention, was but a necessary preliminary step preparatory to the final action of the state acting through the convention. If the final action of the convention is not a legislative act, it must logically follow that a preliminary step preparatory to such final action is not a legislative act. It is a familiar adage that the whole is not different from the parts of which it is composed. Under any view of the case, House Bill 514 is not an act of the legislative assembly within the meaning of the referendum provisions of the state Constitution, and for that reason is not subject to the referendum.”

By the same reasoning, the action of the people in voting on proposed charter amendments would not be a legislative act, and consequently the preliminary step of proposing such constitutional amendments and providing for a vote thereon by the people would not be a legislative act and would not be subject to referendum. This is consistent with the decisions in the Lesueur, Kirby and Atterbury cases.

Section 18 of Article III of the Charter, the section relied on by respondents, deals with emergency ordinances. Does it apply to constitution making or merely to legislation? The very reason for emergency legislation is a manifest necessity for immediate legislative change. This is the basis for making the legislation effective at once rather than after the usual delay between passage and effective date (this also involves preventing the greater delay involved in referendum of legislative proposals). As stated in 82 C.J.S. Statutes § 401c, page 965, “Broadly speaking, an emergency justifying the legislature in making a statute effective on its passage consists in an unforeseen combination of circumstances calling for immediate action to preserve the public peace, health, or safety, or to support the state or its existing institutions.”

The two charter amendments proposed by ordinance dealt with making the office of County Highway Engineer appointive rather than elective, and extending the merit system to certain employees. These amendments could not become effective unless and until approved by a vote of the people. This is true of every charter amendment proposed by ordinance. It cannot become effective immediately. It is simply the preliminary step in the process of charter amendment. It initiates a proposal on which the electorate will decide. It is for this reason that this court consistently has held that such acts by the legislative body need not comply with constitutional title requirements for legislation, need not comply with constitutional requirements as to a particular number of readings, and need not even comply with constitutional provisions that legislative acts be presented to the executive officer for his approval or veto. Likewise, the section of the charter dealing with emergency legislation is not germane to the constitution amending process. The action of the legislative body simply is the initial step therein. No new law dealing with some emergency exists after the legislative body has enacted the amendment proposal. This conclusion is not the enunciation of any new. doctrine or principle. It merely applies what this court has stated over a long period of our state’s history in the Lesueur, Kirby, Atterbury and Sevier cases, as well as the principle of Hollingsworth v. State of Virginia.

Even if we assume and hold that Section 18 is applicable to the charter amending process, we still conclude and hold that the two ordinances were adopted and should have been submitted to a vote of the people. The ordinances must be emergency ordinances to fall within the terms of Section 18. This court has held repeatedly that the question of whether a legislative act is in fact an emergency measure is a judicial question, not a legislative one. Such cases have involved both statutes and ordinances. State ex rel. Asotsky et al. v. Regan, 317 Mo. 1216, 298 S.W. 747, 55 A.L.R. 773; State ex inf. Taylor, Atty. Gen., ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762; Inter-City Fire Protection District of Jackson County v. Gambrell, 360 Mo. 924, 231 S.W.2d 193; State ex rel. City of Charleston v. Holman, Mo., 355 S.W.2d 946.

There was no evidence offered by respondents to show that these two ordinances were emergency matters. The ordinances themselves contained no language or statement of emergency or even that an emergency measure was intended. There is nothing in the subject matter of either ordinance which even suggests any emergency. One transfers some employees to the merit system. The other changes an office from an elective to an appointive status. It is hard to imagine anything less emergency in nature. Respondents rely solely on the provisions of Section 18 to make these emergency ordinances. Expressed as a syllogism, their position is: Every ordinance submitting something to a vote of the people is an emergency ordinance under Section 18; Ordinances 3345 and 3346 submit matters to a vote of the people; therefore Ordinances 3345 and 3346 are in fact emergency ordinances. Such a conclusion is at variance with the doctrine that the determination of whether a legislative act is in fact emergency in nature is judicial. We must conclude that these two charter amending ordinances were not in fact emergency measures. Not being such, they required only four votes for passage under Section 13. In reaching this decision we have considered the Asotsky and North Kansas City cases, supra, cited and relied on by respondents. Asotsky involved a cigarette tax measure and whether it was subject to referendum. The North Kansas City case did involve an ordinance calling an election in connection with a proposed annexation of property which both Kansas City and North Kansas City sought to annex. Both cases recognize that whether a legislative act is in fact emergency is a judicial question. We will not undertake to compare and distinguish. We hold simply, that nothing in either decision leads us to the conclusion that either Ordinance 3345 or 3346 was in fact emergency in nature.

The judgment is reversed and remanded and the trial court is directed to dismiss plaintiffs’ petition and the counterclaim and cross claim of defendants O’Hara, Osborn and Martin. It is directed further to issue its mandatory injunction, prayed for in the counterclaim of appellants, directing plaintiffs, the members of the Board of Election Commissioners of St. Louis County, Missouri, to submit the charter amendments proposed by Ordinances 3345 and 3346 to the voters of St. Louis County, Missouri, at the general election to be held on November 8, 1966.

STORCKMAN, C. J., and HYDE and EAGER, JJ., concur.

DONNELLY, J., dissents in dissenting opinion filed.

HOLMAN and HENLEY, JJ., dissent and concur in dissenting opinion of DON-NELLY, J.

DONNELLY, Judge

(dissenting).

The Charter of St. Louis County requires that an amendment to the Charter must be approved by the people. Section 18 of Article III of the Charter states unequivocally that an ordinance providing for the submission of any proposal to the people is an emergency ordinance and that such an ordinance shall require the affirmative vote of not less than five members of the County Council. I find no ambiguity. The principal opinion undertakes to make a determination as to whether Ordinances 3345 and 3346 are in fact “emergency” measures. I would not do this. I feel the people of St. Louis County determined the question when they adopted Section 18 of Article III as part of their Charter. If we had a case before us where the County Council had sought to enact an ordinance under Subsection (6) of Section 18, the Council (not the people) would have declared the emergency and would have engaged in a legislative act. In that situation, the Asotsky case, cited in the principal opinion, would rule, and the question would be for judicial determination. This is not the situation in the instant case.

I respectfully dissent.

On Motion for Rehearing

PER CURIAM.

In their motion for rehearing respondents urge that the judicial power to determine whether an emergency in fact exists is limited to a review of declarations of emergency by a legislative body. It has no application, say respondents, to declarations by the people in their charter, and such determinations are conclusive on the courts and not subject to any review. The cases of State ex inf. Taylor, Attorney General, ex rel. Kansas City v. North Kansas City, Mo., 228 S.W.2d 762, and State ex rel. Asotsky v. Regan, 317 Mo. 1216, 298 S.W. 747, 55 A.L.R. 773, are cited as being in support of this proposition.

The later of these two cases is the North Kansas City case. What we say herein would apply in principle to a discussion of the Asotsky case, and hence we will discuss only the North Kansas City case in this per curiam.

O.ne question decided in the North Kansas City case was that an ordinance adopted by the City Council of Kansas City was an emergency measure. Kansas City was a constitutional charter city and its charter contained a provision that “any ordinance * * * providing for the submission of any proposal to the people” was an emergency ordinance. In the title of the ordinance which was adopted, as well as in the body thereof, it was declared that the ordinance was an emergency measure. The court’s opinion referred to the fact that the city charter did contain the provision above referred to and that it was “not an unlawful or unreasonable one.” This language seems to say that this charter provision made an ordinance submitting a proposal to the people an emergency measure in and of itself. However, in the same opinion, 228 S.W.2d on page 773, the court recognized that “it is the function of the courts in a judicial proceeding to determine whether a statute or an ordinance is in fact an emergency measure within the law.” Subsequently, the opinion went on to say: “This proposal requiring a submission to the people for their approval or rejection in an election was an emergency measure. Relator’s City Council had the lawful right to so denominate this an emergency measure and we hold that in fact it was such.” (Emphasis supplied.) Thus, the court noted in the North Kansas City case that the City Council in its ordinance declared it to be an emergency ordinance, and the court then held that the ordinance, passed by the City Council, was in fact an emergency measure. The court thereby exercised the judicial function of making such a determination. It thus appears that the court assigned two bases for its decision upholding the ordinance as an emergency measure. It cannot be said that the decision is based solely on the proposition that the charter provision conclusively made the ordinance an emergency measure, because, in that event, the court would not have gone ahead and judicially determined that it was an emergency measure in fact.

Missouri is in accord with the prevalent view that a legislative declaration stating an act to be an emergency measure is entitled to great weight, “but is not conclusive, because the courts possess the final authority to determine whether an emergency in fact exists.” 16 Am. Jur.2d, Constitutional Law, § 171, p. 390. See also 37 Am.Jur., Municipal Corporations, § 152, p. 765; Annotations: Emergency Clause in Ordinance, 35 A.L.R.2d 586, 55 A.L.R. 779. Such right is not conferred specifically in any constitutional provision but is an inherent judicial function applicable alike to enactments of the state legislature and of municipal bodies.

Whether respondents are correct in their contention that the charter declaration of emergency is conclusive upon the courts involves a consideration of (1) the status of a county or city and of a charter which it adopts, and (2) the nature of the authority of the court to judicially determine whether an emergency in fact exists.

A county or a city, charter or otherwise, is imperium in imperio, that is, a government within a government. The people of a county or city, as such, are not sovereign. A non-charter county or city has the powers conferred on it by the Constitution and statutes of the state. A charter does not transform a county or city into a government apart from and superior to the state. Provisions of a county or city charter which substitute for state legislation with respect to that particular county or city must conform to the Constitution and laws of the state in matters of general interest and statewide concern and are, subject thereto. Such charter provisions, in so far as that county or city is concerned, have the force and effect of a statute of the legislature and can be declared invalid for the same reasons as acts of the legislature. Kansas City, Missouri v. J. I. Case Threshing Machine Co., 337 Mo. 913, 87 S.W.2d 195, 202. In addition, of course, the charter must conform to the general laws of the state and when the provisions thereof do not so conform they are invalid. The contention that provisions of a county or city charter are inviolate because they were made by the people themselves rather than a legislative body is not sound. An example will illustrate. In McDonnell Aircraft Corp. v. City of Berkeley, Mo., 367 S.W.2d 498, this court held invalid an amendment to the charter of the City of Berkeley whereby it had annexed additional territory. The city had followed its charter in making the annexation. The contention was made that this annexation in the form of a charter amendment was an action of the people themselves acting under authority of the Missouri Constitution to adopt an amended charter and that such action was not subject to judicial review as to reasonableness. This court expressly held that this action by the people themselves was subject to judicial review and the annexation was held to be arbitrary and unreasonable, and therefore invalid. Thus, the action of the people in the form of an amendment to their charter was not conclusive on the courts and was not immune from an examination as to reasonableness. See also City of Hannibal v. Winchester, Mo., 391 S.W.2d 279.

We desire to make it clear that our decision in this case does not affect the result in State ex inf. Taylor, Attorney General, ex rel. Kansas City v. North Kansas City, supra. That case was correctly decided in that the decision of the court rests primarily on its holding that the emergency declared by the City Council was in fact an emergency. Other considerations mentioned were unnecessary to the opinion.

HOLMAN, HENLEY and DONNELLY, JJ., dissent.

      . The Lesueur ease was one in which this eourt considered a suit by a property owner to enjoin the Secretary of State from submitting to the voters of the state a proposed constitutional amendment whereby the seat of government would have been moved from Jefferson City to Sedalia. The resolution had received a majority vote hut it had not been read on three different days in each house of the General Assembly. As the quotation from the Kirby case indicates, this court held in the Lesueur case that the requirement of three readings required by the Constitution did not apply to a resolution proposing a constitutional amendment and that it had been validly passed and should be submitted to a vote of the people.

      . For cases from other states. containing helpful discussions of this principle that constitutional provisions dealing with legislative requirements are not applicable to acts by the Legislature when acting in its constitution making capacity, see the cases of Commonwealth ex rel. Atty. Gen. v. Griest, 196 Pa. 396, 46 A. 505, 50 L.R.A. 568, and Hutcheson v. Gonzales, 41 N.M. 474, 71 P.2d 140.

      . Article III, Section 31, reads as follows: “All bills and joint resolutions passed by both houses shall be presented to and considered by the governor, and within fifteen days after presentation he shall return them to the house of their origin endorsed with his approval or accompanied by his objections. If the bill be approved by the governor it shall become a law. When the general assembly adjourns, or recesses for a period of thirty days or more, the governor may return within forty-five days any bill or resolution to the office of the secretary of state with his approval or reasons for disapproval.”

      .Article IV, Section 8, reads as follows: “Every resolution to which the concurrence of the senate and house of representatives may be necessary, except on questions of adjournment, going into joint session, and of amending this constitution, shall be presented to the governor, and before the same shall take effect, shall be proceeded upon in the same manner as in the case of a bill; provided, that no resolution shall have the effect to repeal, extend, or amend any law.”

      . For eases in which more pressing matters were held not to be emergencies, see State ex rel. State Highway Commission v. Thompson, 323 Mo. 742,19 S.W.2d 642; Fahey v. Hackmann, 291 Mo. 351, 237 S.W. 752; State ex rel. Westhues v. Sullivan, 283 Mo. 546, 224 S.W. 327; State ex rel. City of Charleston v. Holman, Mo., 355 S.W.2d 946.


source: Caselaw Access Project

author: HENLEY, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jack Virgil CAFFEY, Appellant.
    No. 51596.
    Supreme Court of Missouri, Division No. 1.
    June 13, 1966.
    Motion for Rebearing or to Transfer to Court En Banc Denied July 11, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Norman A. Seiner, Special Asst. Atty. Gen., Clayton, for respondent.
    Hildebrandt & Smith, Springfield, for appellant.
   HENLEY, Judge.

Defendant was charged by information with burglary in the second degree and stealing, and a prior conviction under the Habitual Criminal Act. Sections 560.070, 560.156 and 556.280, RSMo 1959, V.A.M.S. Out of the hearing of the jury, evidence was submitted supporting a finding that defendant had been convicted of a prior felony, sentenced and imprisoned therefor. A jury found him guilty of the offenses of second-degree burglary and stealing. After his motion for new trial was overruled, the court determined and assessed his punishment at imprisonment for a term of four years on his conviction of burglary and imprisonment for a term of two years on his conviction of stealing, the sentences to run consecutively. He appeals from the ensuing sentences and judgment.

He assigns as error action of the court in overruling his motion for judgment of acquittal at the close of the state’s case for the reason that the evidence (which he contends was wholly circumstantial) was insufficient to sustain a judgment of conviction. Defendant offered no evidence in his own behalf. The evidence at the trial developed the following facts.

In the early morning hours of January 9, 1965, at about 12:30 a. m., the defendant was found crouched or hunkered down behind a desk in the cashier’s office of the Teamsters Union Hall, Local 245, in Springfield, Missouri, by Carl Page and Bob Kirk, assistant business representative and organizer, respectively, of the Union. Page and Kirk had been to Camdenton that day and on their return to Springfield shortly after midnight they went to the Teamsters building to get Mr. Page’s automobile keys from his office. Using his key to unlock the south or rear door, Mr. Page, with Mr. Kirk close behind him, entered the darkened building and turned on a light. En route down the hallway to Page’s office they heard a noise from the cashier’s office. Suspicious of the noise, Kirk remained at the locked door of the cashier’s office while Page went to the hall door of an adjoining and connecting office. He unlocked this door and then gave the keys to Kirk who unlocked the cashier’s office door. Entering the two rooms and turning on lights almost simultaneously they discovered the defendant in the position above described. Defendant is not a member of the local Union and had no authority to he in the building. One of them ordered the defendant to stand up with his hands above his head. While Page was using the telephone to call one of the officers of the Union, defendant attempted to escape. A scuffle ensued and he was subdued in the hallway by Page and Kirk. The police arrived within a few minutes and defendant was placed under arrest. He was searched and approximately $20 in currency and change, a pocket knife, a pair of gloves, and two hard-steel instruments later identified as capable of being used effectively as lock-picks were found on his person. A flashlight was found on a desk in the cashier’s office. In the cashier’s office a file cabinet drawer in which the petty cash box was kept was found standing open.

The secretary in charge of the petty cash fund testified that she inventoried the petty cash box, placed it in the file drawer, locked the drawer and put the key in her desk before she left the office shortly after 5:00 p. m., Friday, January 8, 1965; that she returned to the office Monday morning, January 11, inventoried the petty cash box and found it short $19.60.

After defendant was placed under arrest, all outside windows and doors were checked and all found closed and locked, except double doors on the front or north side of the building which were found closed but unlocked. These doors could be locked or unlocked from the outside or inside only by the use of a key. No mars or scars were found on these doors to indicate that they had been forced open.

The last person to leave the building on January 8, was William W. Kitts, who was holding a meeting of about 15 or 20 members of Joplin Local 823 in the auditorium of the building. Mr. Kitts testified that he saw Raymond Barton, janitor of the building, close and check all windows and doors of the building, including the inside doors, before Mr. Barton left shortly after 7:00 p. m. on the 8th; that the only door left unlocked by Barton was the rear or south door; that after those attending his meeting had left, at about 9:30 or 10:00 p. m., he turned out the lights and left through the south door, locking it with his key; that his key would not fit the north double doors, and that neither these nor any other doors were unlocked that evening after the janitor left.

The janitor testified that he left the Teamsters Hall shortly after 7:00 p. m., on January 8th, leaving Mr. Kitts and members of the Joplin Local in a meeting; that he showed Mr. Kitts some recent remodeling of the offices and as they went about the building, he checked all outside windows and doors, and inside office doors, to see that all were secure and locked; that when he left, all windows and doors, including the north side double doors and the door to the cashier’s office (except the rear or south door), were locked, and all file drawers in the cashier’s office were closed.

Detective Paul Jones of the Springfield Police Department testified that on Wednesday afternoon before the trial he took the two hard-steel instruments (found on defendant’s person when arrested; identified, offered and received in evidence as state’s exhibits A and B) out to Teamsters Hall and, along with others, watched a' man from a local key service company take these instruments and with them unlock and then lock the north double doors of the Hall within a period of two minutes, all from outside the building.

Leo Deulen, President of the local Teamsters Union, testified that he was present on Wednesday afternoon before trial day and, along with others, watched a man from a local key service company use these two instruments to unlock and lock the double doors on the north side of the Teamsters building.

“Where the evidence of a defendant’s participation in the offense charged is circumstantial, as it is in this case, ‘the facts and circumstances relied upon by the State to establish guilt must not only be consistent with each other, and with the hypothesis of defendant’s guilt, but they must also be inconsistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to guilt as to exclude every reasonable hypothesis of innocence.’ [citing cases] In ruling the sufficiency of the evidence to support a verdict of guilty, however, even where the evidence is wholly circumstantial, all of the evidence tending to support the verdict must be considered as true, and every legitimate inference therefrom favorable to the verdict must be indulged.” State v. Burton, Mo., 357 S.W.2d 927, 929-930 [1, 2], and cases there cited. Also see: State v. Smith, Mo., 357 S.W.2d 120, 123 [7].

The uncontradicted evidence is that when the last person left the Teamsters Union Hall at about 9:30 or 10:00 p. m., on January 8, all inside lights were out and all outside windows and doors, as well as all inside doors and file cabinet drawers in the cashier’s office, were closed and locked; that shortly after midnight defendant, not a Union member and with no authority to enter the building, was found crouched or squatted behind a desk in the darkened and locked cashier’s office in close proximity to the opened file cabinet drawer containing a box in which the petty cash fund was kept and from which $19.60 was missing; that defendant attempted to escape his ac-costers; that when searched approximately $20, an amount similar to that missing, was found on his person together with two hard-steel instruments capable of being used to pick the lock on the north double doors; that the windows and outside doors were checked within a few minutes after defendant’s arrest and all were found to be closed and locked, except the north double doors which were closed but unlocked. From these facts and circumstances it reasonably may be inferred that defendant, with the described instruments, picked the lock on these doors, entered the building through this doorway, and took the money missing from the petty cash box.

We hold that this constituted sufficient evidence to support a finding that defendant broke and entered the building with the intent to steal and did steal. State v. Brewer, Mo., 325 S.W.2d 16, 20 [9-12]; State v. Fritz, Mo., 379 S.W.2d 589, 590-592 [2-7]; State v. Young, 345 Mo. 407, 133 S.W.2d 404, 407-408 [10-11] ; State v. Burton, Mo., 357 S.W.2d 927, 930-931 [3-4]; State v. Luther, Mo., 338 S.W.2d 846, 848 [6]; State v. Hannon, Mo., 204 S.W.2d 915,916-917 [1,2].

Defendant’s next assignment is that the court erred in not submitting the issue of punishment to the jury for the reason that the information fails to charge properly a prior conviction in that it does not allege “a valid sentence, imprisonment thereunder, compliance with said sentence and discharge thereunder.”

The first paragraph of the information alleges that on September 16, 1955, prior to the date of the offenses of burglary and stealing charged in the information, defendant was convicted in the Circuit Court of Greene County, Missouri, of felonious assault, an offense punishable by imprisonment in the penitentiary, sentenced to imprisonment for three and one-half years and thereafter imprisoned therefor. The information meets the requirements of § 556.280 and is sufficient. It was not necessary that the information allege full compliance with the sentence and his discharge therefrom. State v. Donnell, Mo., 387 S.W.2d 508, 514 [12].

As a sub-point in his attack on the applicability of the Habitual Criminal Act defendant contends that the court’s finding of a prior conviction is insufficient in that it is a general finding and not a specific finding of each fact required by § 556.280. After hearing evidence, which defendant admits in his brief was sufficient to prove the applicability of the Act, the court made this order: “The court finds that under the evidence that [sic] the defendant is a habitual criminal as that term is defined by law.” Before enactment of the present Habitual Criminal Act an analogous situation arose in State v. Kelly, Mo., 258 S.W.2d 611, 612 [7], wherein evidence of the prior conviction was heard and determined by the jury. In Kelly the jury returned a verdict finding “the defendant guilty of Larceny from a building, Second Offense, as charged in the information, * * The court said “The verdict should, have contained a specific finding by the jury that defendant had been convicted of a prior felony as charged, rather than a finding of ‘Second Offense.’ * * * However, by reference to the information, the evidence of a prior felony conviction, and the instructions of the court, the meaning of the verdict is clear. Under these circumstances, it was sufficient in form and substance to sustain the judgment.”

While the order in this case certainly is not a model to be followed, its meaning is clear. We hold that it is a sufficient finding on which to base assessment of punishment by the trial judge after conviction. The better practice would have been for the order to recite specific findings of defendant’s (1) prior conviction, (2) sentence, and (3) subsequent imprisonment.

On the morning of trial day, May 7, 1965, outside the presence of the jury, counsel for defendant made an oral motion to quash the jury panel on the grounds that it was his “understanding” that the jury panel was present in the courtroom on May 5, when defendant was brought into the courtroom in handcuffs for a hearing on a motion to suppress evidence; and, that it was also his “understanding” defendant had been brought handcuffed from the jail to the courtroom for trial and en route was in the presence of the jury in the hallway. He assigns as error action of the court in overruling his motion to quash, stating that there was no showing by the state of any necessity for his being handcuffed. He argues that his exposure to the jury while so shackled was prejudicial to his rights and denied him a fair trial and due process of law.

No evidence was offered by defendant to support these allegations of his motion. We are faced with the bare motion which does not prove itself. This assignment of error is without merit. State v. Boone, 355 Mo. 550, 196 S.W.2d 794, 797 [4],

The next point briefed by defendant is that the court erred in- permitting Detective Paul Jones to testify that he saw an employee of a key service company unlock and lock the north double doors of the Teamsters building by use of the two hard-steel instruments taken from defendant’s person on the night of his arrest; that this key service company employee was, in effect, a witness against him and that by the detective’s testimony he (defendant) was denied confrontation and cross-examination of that witness in violation of his rights guaranteed by § 18(a), Article I, Constitution of Missouri, V.A.M.S., and the Sixth Amendment to the Constitution of the United States.

The objections made by defendant during the direct examination of Detective Jones were not that he was being denied confrontation of a witness against him, but were to Jones describing an experiment he saw someone else perform. It was not until after cross-examination of Jones by defendant and after the witness had been excused from the stand that defendant made the objection that he was denied confrontation of a witness against him. This objection was not’ raised at the earliest opportunity and was thereby waived. State v. Garrett, Mo., 391 S.W.2d 235, 243-244 [5],

Moreover, there are other reasons why defendant has waived any objection to this testimony of Detective Jones. During his cross-examination of Jones, defendant developed the fact that it took the employee of the key service company only two minutes to unlock the double doors with the lock-picks. And defendant made no objection whatever to the testimony of Leo Deulen, President of the Local, who said that he too was present and observed this employee of the key service company unlock and lock these doors with these instruments.

Actually, all that Detective Jones testified to was what he observed with his own senses. That is, he said he saw this employee of the key service company insert these two hard-steel instruments in the lock on the double doors, move these instruments around, and thereby unlock and then lock the doors. Testimony as to what the detective observed with his own senses did not deprive defendant of his constitutional right of confrontation. City of Webster Groves v. Quick, Mo.App., 323 S.W.2d 386, 390 [5], transferred from Supreme Court, 319 S.W.2d 543.

Defendant’s next assignment is that the court erred in failing to instruct on the offense of stealing less than $50, and in failing to submit to the jury forms of verdicts for this separate offense. The record does not support his contention that verdict forms on stealing less than $50 were not submitted to the jury. The evidence was that the amount missing from the petty cash box was less than $50. Stealing less than $50 in conjunction with a burglary is a felony, and stealing less than $50 not in conjunction with a burglary, is a misdemeanor. Sections 560.110 and 560.161 RSMo 1959, V.A.M.S. Had defendant not been charged with burglary or, if being so charged the jury had found him not guilty of burglary, the jury could have found him guilty of stealing less than $50. “* * * But here the jury found the defendant guilty of the separate and distinct offense of burglary, and therefore any stealing done in conjunction therewith could not have been a misdemeanor. While it was error not to instruct on the offense of stealing less than $50, under the circumstances here where the jury found defendant guilty of the burglary, it was not and could not have been prejudicial to the defendant that the jury was not instructed on stealing less than $50.” State v. Crow, Mo., 388 S.W.2d 817, 820-821 [7, 8]; State v. Davy, Mo., 395 S.W.2d 211, 213 [1], and cases there cited.

Defendant’s next point is that the court erred in giving instruction No. 4. No attack is made on this instruction in defendant’s motion for new trial and the point is not preserved for review. Rule 27.20, V.A.M.R.; State v. Brookshire, Mo., 353 S.W.2d 681. Moreover there would be no merit in the point had it been preserved for review. A like instruction was approved in State v. Breeden, Mo., 180 S. W.2d 684, 687 [6],

Defendant next contends that the court erred in failing to declare a mistrial, because the state’s attorneys expressed their personal opinions of defendant’s guilt in their closing argument. A portion of the argument of one of counsel for the state was as follows: “ * * * The question is, How did Mr. Caffey get into the Teamsters Hall that night? Well, we found two chunks of metal, here, on Mr. Caffey. They were in his pocket. Lieutenant Hoagland testified to that. Here they are. And Mr. Jones, Detective Jones, testified that he, last Wednesday, witnessed these locks being opened by the use of these very two items that were found on Mr. Caffey, by manipulating the locking mechanisms, the tumblers, the door was unlocked. He observed that. I don’t think there is any question in my mind about how Mr. Caffey got there — .”

Defendant objected to counsel “expressing his personal opinion on this case”, and moved for a mistrial. The court’s ruling was: “The objection will be sustained as to what the prosecutor thinks about it. The jury will understand that it is what the jury thinks about it is what counts. The prosecutor is entitled to draw such legitimate inferences from the facts as he can. The request for mistrial will be denied. The jury will be instructed to disregard what the prosecutor thinks * *

Later, the second of counsel for the state argued, in part: “ * * * Now if this man were a member of this organization, or something like that, what would he be in there for? What would he be in there for? In the dark, in the middle of the night, with all the doors locked except one door, the outer door, where he supposedly went in? I think it is a fair inference that he went in that door. Now if he was supposed to be in there, wouldn’t he turn on the light to see what he was doing? Would he hide behind a desk? Would the cabinet be open where the money was supposed to be ? Would the change be in his pocket? Would all these things occur? Is it not a fair inference that this man is guilty of Burglary and Larceny and that he should be found guilty? I think it is fair, I think it is one of the fairest cases I ever saw.”

Defendant again objected to counsel “expressing his own personal opinion on the case” and moved for a mistrial. The court sustained the objection but overruled his motion for mistrial.

Although counsel for the state may not express their private opinions of the guilt of defendant, they may state their conclusions based on the evidence. State v. Warren, Mo., 320 S.W.2d 575, 578; State v. Vinson, Mo., 107 S.W.2d 16, 18 [4]; State v. Gridley, Mo., 353 S.W.2d 705, 707-708 [10-12] ; State v. Johnson, 349 Mo. 910, 163 S.W.2d 780, 784 [14-15], It is apparent that in both instances the objected-to remarks of counsel for the state, taken in context, were statements of their conclusions based on the evidence. We hold that these arguments did not amount to improper expressions of personal opinions as to the guilt of defendant.

Also during closing argument, one of counsel for the state remarked, “ * * I would like to go over some of the testimony. We call this a closing argument, but really we are not arguing about much, because everything I am arguing about and talking about is uncontradicted. Everything that was put on here was put on by the State. That evidence has been uncon-tradicted * * *.” Defendant’s objection to this portion of the argument, overruled by the court, was ;“***! believe it is a comment upon the fact the defense has presented no evidence in this case * * His assignment of error and the point briefed is that this remark constituted a comment on the failure of defendant to testify, a comment prohibited by § 546.270, RSMo 1959, V.A.M.S.

Assuming for the purpose of this opinion that this objection is sufficient to preserve for review the specific point now relied on, we experience no difficulty in holding that the argument was not a comment on defendant’s failure to testify. This court has held many times, and we again hold, that argument that evidence on behalf of the state is uncontradicted or undisputed does not constitute error. State v. Perkins, Mo., 382 S.W.2d 701, 706 [8], and cases there cited; State v. Hayzlett, Mo., 265 S.W.2d 321, 323-324 [3-4],

Examination of the record required by our Rule 28.02, V.A.M.R. discloses no error.

The judgment is affirmed.

All concur.

      . Laws 1959, Senate Bill 117, § 1; now § 556.280, RSMo 1959, V.A.M.S.


author: HOLMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Richard BROWN, Appellant.
    No. 51452.
    Supreme Court of Missouri, Division No. 1.
    June 13, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied July 11, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Stanley D. Rostov, Special Asst. Atty. Gen., Kansas City, for respondent.
    John D. Chancellor, St. Louis, for appellant.
   HOLMAN, Presiding Judge.

Charged by indictment with murder in the first degree, the defendant, Richard Brown, was found guilty of that offense and his punishment was fixed by the jury at life imprisonment. See §§ 559.010 and 559.030, RSMo 1959, V.A.M.S. Defendant has appealed.

Defendant was jointly indicted with Courtney Lorenzo Beasley, Archie B. Brown (no relative of defendant), and Jimmie Sharp, but prior to trial defendant was granted a severance. Defendant and the others named were charged with killing Vernon Coleman on May 11, 1964, by beating and kicking deceased and striking him with a cluster of brick, held together by mortar, which weighed 90 pounds. Coleman, a 35-year-old Negro (all parties involved apparently were Negroes), lived in a shed on an alley at the rear of 4311 Garfield in St. Louis, Missouri. Coleman followed the practice of purchasing intoxicating liquor for the teen-agers in the neighborhood, and his compensation each time was a drink out of the bottle purchased. On the dates in question defendant was 1.5 years old. All of the young people mentioned in this factual statement were juveniles except Beasley who was 17. At about 5 p. m. on May 11, Coleman bought some wine for defendant and Beasley. That evening Beasley, Tommy Brown (brother of defendant), Jimmie Sharp, Harold Frazier, Betty McAlpine, and Myra Hair gathered at defendant’s home where they danced and drank wine. They left about 9:30 and the boys congregated on Pendleton Avenue across the street from the alley leading to Coleman’s shack. The girls had gone to Betty’s home where they were instructed by Betty’s aunt to go out and get some food. Apparently their route took them by the place where the boys had gathered. At about that same time the boys decided to go to Coleman’s shack, and the girls stood at the entrance of the alley and watched the proceedings. The boys entered the shed and Beasley asked Coleman for some wine. When he got none he commenced striking Coleman. After a time Coleman ran out of the building into the alley where one of the boys grabbed him and he fell to the ground. At that time all the boys gathered around Coleman and kicked him and hit him with sticks and bricks. Defendant picked up the large block of bricks and dropped it, according to the testimony, either on Coleman’s chest or left shoulder. At about that point all of the boys, except Beasley, ran from the alley and were joined by the girls in leaving the immediate vicinity of the Coleman shack. The evidence does not disclose just when Beasley left or where he went. Seme of the boys went to their homes, but defendant and Frazier spent the night in the apartment of Betty McAlpine’s aunt, Mrs. Yvonne Collins, located in the same house in which Betty and her family lived.

At 12:58 a. m. May 12, a call was received by the police and upon going to the area in question they found Coleman lying on the ground unconscious. They immediately took him to the hospital where he was pronounced dead. An autopsy was performed which disclosed that Coleman died as the result of a traumatic fracture of the skull in the right temporal region and resulting cranial hemorrhage. In response to a hypothetical question a physician testified that in his opinion death resulted from the beating of Coleman in the manner here-inabove described. The young people above mentioned were arrested within a few hours following the finding of deceased’s body, although defendant was probably not arrested until about 7 o’clock the following morning. He and the others were questioned at the homicide division of Central Police Station and defendant signed a written statement admitting his participation in the assault. A motion to suppress the statement was overruled prior to trial and it was admitted in evidence over the objection of defendant.

As will hereinafter appear, it is important that we set out the substance of the confession signed by defendant and also a summary of his testimony in his own behalf. The confession was in question and answer form, but we will state it in the narrative in order to save space. Therein, after giving information concerning his age, address, parents, etc., defendant stated that at about 10 o’clock on the evening of May 11, Beasley and Archie B. suggested that the group of eight or nine boys go to the shed of Ace Coleman, saying, “Let’s go mess with Ace,” which he thought meant to go tease him about drinking wine; that when they got there Beasley went in the shed and said to Ace, “Give me some wine,” and Ace said, “I don’t have none,” and Beasley hit him in his face with his fist; that Ace sneaked out some way and then Jimmie hit him and knocked him down, and all eight of the boys were around him “kicking on him and everything”; that he kicked him about five times with the desert boots he had on, and some of the boys struck him with sticks; that he then picked up the cluster of bricks, lifted it a little over a foot, and dropped it on Coleman’s left shoulder; that during all of the time Coleman was asking what he had done and saying that they shouldn’t be bothering him; that after he had dropped the bricks somebody said, “He’s dead,” and that he said, “No, he ain’t, man, because he is still breathing”; that Coleman was still trying to get up and said something about calling the police and then everybody ran.

On direct examination defendant testified that at about five o’clock p. m. on May 11, Coleman bought some wine for him and Beasley; that Coleman also put a pill in a cigarette and gave it to him which made him dizzy when he smoked it; that later that evening, at Beasley’s suggestion, he, Beasley, Jimmie Sharp, Harold Frazier, and Archie Brown went up to Ace Coleman’s shed; that Beasley went in the shed and struck a match and called Coleman’s name, and as Coleman raised up out of bed Beasley started throwing at him and he hit him; that Coleman then ran out of the shed and someone knocked him down and “he fell beside me and grabbed my leg and I started kicking him. I then saw the cluster of bricks and I picked it up and dropped it on his shoulder to make him let go of my leg. He let my leg go and Harold Frazier said the man was dead. I got down on my knee and listened to his heart and I said he wasn’t dead, and I then left the alley. As I left I looked back and he was trying to get up and was cursing.” He further stated that when the police officers and others questioned him the following morning he answered every question they asked; that he had an eighth grade education.

Defendant’s first point is that the court erred in overruling his motion to suppress the confession and in admitting said statement in evidence at the trial. At the hearing of his motion to suppress defendant presented two witnesses. He first called Quentin Gansloser, the first assistant circuit attorney, who stated that he arrived at the homicide division of Central Police Headquarters at about 9 a. m. on May 12 and proceeded to take statements from a group of boys; that he did not recall contacting the juvenile court judge before taking the statements; that prior to questioning defendant he did not advise him of his right to consult an attorney, nor advise him of his right to contact his mother, but did ascertain that no one had threatened defendant or promised him anything; that he advised him that any statement he signed could be used against him in court and that he did not have to give one except of his own free will.

The other witness, John Brooks, testified that he was a deputy juvenile officer and that he had been informed, about 10 a. m. on May 12, that defendant was in the custody of the homicide division; that he immediately went to homicide and saw defendant and some other boys in a room with Officer Webb and Mr. Gansloser; that he then identified himself to Mr. Gansloser as a juvenile officer and asked if he could speak with defendant; that Gansloser replied, “You can speak with him after a while, later” ; that he then went into another room and waited, and later talked with two of the boys, but defendant had not been sent in at the time he left at 12:30 p. m.; that he saw defendant that afternoon in the detention office of juvenile court.

The reasons advanced by defendant in support óf his contention that the statement should have been excluded are summarized in the following quotation from his argument: “It must be clarified at the outset that no contention is here made that appellant suffered physical or psychological coercion or any threats or promises. Rather., the contention is that the confession was not voluntary for the purpose of due process because: Appellant, a fifteen year old Negro boy with an eighth grade education was not given the advice of his mother, an attorney or an adult friend, he was not taken before the juvenile court as required by law and an officer of the juvenile court * * * was restrained from talking with defendant until after he signed a confession in absolute defiance of * * * the laws of this state; and, further, appellant was not advised of his right * * * to remain silent and make no statement at all.” He relies mainly upon the cases of Gallegos v. State of Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325, and Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224.

We have decided that we need not determine the contention as to whether the court erred in admitting the confession. This for the reason that, assuming arguendo (but not deciding) that the statement should have been excluded, its admission could not have been prejudicial to defendant because he subsequently testified to every material fact contained therein. “[Wjhen the truth of a confession is established by the very person who made it under such solemn circumstances as on oath in open court, he may not be permitted to claim error because of the use of the confession on the ground it was involuntary.” State v. Ussery, 357 Mo. 414, 208 S.W.2d 245, 247. Our conclusion is also supported by the following cases: State v. Forbus, Mo. Sup., 332 S.W.2d 931 [3]; State v. Laspy, Mo.Sup., 323 S.W.2d 713 [8]; State v. Bray, Mo.App., 278 S.W.2d 49 [3]; State v. Smith, 357 Mo. 467, 209 S.W.2d 138 [3]; State v. Smith, 354 Mo. 1088, 193 S.W. 2d 499 [5]; State v. Marlin, Mo.Sup., 177 S.W.2d 485 [10]; State v. Bagby, 338 Mo. 951, 93 S.W.2d 241 [16]; State v. Ward, 337 Mo. 425, 85 S.W.2d 1 [13]; State v. Park, 322 Mo. 69, 16 S.W.2d 30 [3]; Robinson v. United States, 61 App.D.C. 370, 63 F.2d 147 [2]; People v. Reid, 233 Cal.App.2d 163, 43 Cal.Rptr. 379 [2]; Hubbard v. State, 35 Ala.App. 211, 45 So.2d 795 [8]; TVRZ v. State, 154 Neb. 641, 48 N.W.2d 761 [8]; Walker v. Maxwell, 1 Ohio St.2d 136, 205 N.E.2d 394 [1]; State v. Jones, 52 N.M. 118, 192 P.2d 559 [4]; and State v. Williams, 67 Nev. 373, 219 P.2d 184 [1].

We accordingly rule defendant’s first point adversely to him.

Defendant’s next contention is that the court erred in permitting the assistant circuit attorney, on voir dire examination, to advise the prospective jurors that the juvenile court had certified defendant for trial as an adult. That was done preliminarily to asking the panel whether any of them felt “he could not convict this defendant solely because he is of the age of sixteen.” Outside the hearing of the panel defendant objected on the ground that the statement was equivalent to showing “a prior conviction in this case and on the issues of this case, and as to the seriousness of this case by previous judicial authority.”

Section 211.071, RSMo 1959, V.A. M.S., provides, in part, that “In the discretion of the judge of the juvenile court, when any petition under sections 211.011 to 211.-431 alleges that a child of the age of fourteen years or older has committed an offense which would be a felony if committed by an adult * * * the petition may be dismissed and such child or minor may be prosecuted under the general law whenever the judge * * * finds that such child or minor is not a proper subject to be dealt with under the provisions of sections 211.-011 to 211.431.” While it may not have been necessary for the circuit attorney to advise the panel concerning the action of the juvenile court in order to propound the question he did, we do not think such was prejudicial to the defendant. We do not agree that the order of the juvenile court indicated a finding of guilt. Certainly we think that the average juror would not have any definite idea concerning the meaning of such an order. It is our view that in making such an order the juvenile judge would give primary consideration to the nature of the charge, the background and record of the child, and his physical and mental maturity. We accordingly rule that the statement of the circuit attorney did not constitute reversible error.

Betty McAlpine testified that after the assault had been in progress for a time Beasley walked out of the alley and showed her that his finger had been cut; that he then went back up the alley. Defendant made an offer to prove by the witness that Beasley had told her “that the old man in the shed had cut him.” The court sustained an objection to the effect that the statement was hearsay. Defendant contends that the court erred because the proffered testimony was admissible as a part of the res gestae.

We doubt that the statement was admissible because it apparently occurred some distance from the place of the actual assault, was not in the presence of the defendant, and the element of spontaneity appears to have been lacking. However, even if we assume that it was admissible, we have the view that the exclusion of the statement was not prejudicial error because that evidence would not have been sufficient, when considered with the other evidence, to have supported the submission of defendant’s purported defense. As we understand defendant’s theory of defense, it was that Coleman had not been fatally injured when defendant and the others abandoned the assault and that Beasley stayed behind and thereafter assaulted Coleman in such a manner as to cause the skull fracture from which he died. Defendant says that proof that Coleman cut Beasley’s finger furnished a motive for Beasley to return to the scene of the assault and to inflict the mortal wound after the others had left. The difficulty with defendant’s contention is that there was no substantial evidence from which a jury could reasonably have found that Beasley remained at the scene and inflicted the skull fracture after the others had left. That being true it was not prejudicial error to exclude the proffered statement.

It is also defendant’s contention that the court erred in refusing to give Instruction “A”, offered by him, which submitted his theory of defense. It reads as follows: “If you find and believe from the evidence that on May 11, 1964, between the hours of 10 and 11 p.m., the defendant Richard Brown, acting in concert with one or more other boys, did make an assault upon one Vernon Coleman, commonly known and referred to in the evidence as ‘Ace’ Coleman, and if you further find and believe that the defendant, Richard Brown, and one or more of the other boys abandoned and discontinued the aforesaid assault, and left the area prior to the fatal wounding of the said ‘Ace’ Coleman, if any you find, and if you further find and believe from the evidence that after this assault was abandoned and discontinued by the defendant, Richard Brown, that Courtney Beasley or some other party or parties unknown returned or appeared at the scene and continued or renewed the assault or effected a new assault on the deceased, without the concert, encouragement or assistance of the defendant Richard Brown, if you so find, and if you further find that death was caused by this later assault upon the deceased, ‘Ace’ Coleman, by Courtney Beasley or some other party or parties unknown without the concert, encouragement or assistance of the defendant, Richard Brown, then you will find the defendant Richard Brown not guilty.”

We think the court properly refused the instruction because, as we have indicated in our discussion of the preceding point, it is not supported by the evidence. There was no evidence that Beasley or anyone else assaulted Coleman after defendant left the scene. Moreover, defendant’s own testimony indicated that Coleman was very badly wounded before he and the other boys left the alley. He stated that one of the boys said Coleman was dead, but that he knelt down and listened to his heart in order to determine that he was still alive. Defendant points to the rule that a defendant is entitled to a converse instruction if he requests it and says that “A” was a converse instruction. While a defendant is ordinarily entitled to have a correct converse instruction given if he submits one it is obvious that “A” was not a true converse. In addition to requiring a finding that defendant and those with whom he was acting in concert abandoned the assault before the fatal wound was inflicted, it also required a finding that Beasley, or some unknown party, thereafter inflicted the wound which caused death, and, as we have said, there was no evidence to support such a submission.

In support of his contention defendant has cited State v. Majors, Mo.Sup., 237 S.W. 486, in which the refusal of an instruction somewhat similar to “A” was held to be reversible error. That case has no application here, however, because in Majors there was evidence which would reasonably have supported a finding that the fatal shot was fired by one other than defendant or those with whom he was acting in concert. We rule that the court did not err in refusing Instruction “A”.

In connection with his complaint concerning the refusal of Instruction “A” defendant also contends that the court erred in giving Instructions 1, 2, 3, and 4. The first three instructions mentioned, respectively submitted, in usual form, murder in the first degree, second degree, and manslaughter. Number 4 related to concert of action and appears to be in the form generally used for that purpose. Defendant does not contend that these instructions are not in proper form. As we understand his contention it is that, since the instructions referred to certain defenses which were not applicable (such as excusable and justifiable homicide), and since the court did not give Instruction “A” submitting his theory of defense, the effect was to deprive him of any defense whatever. We see no merit in that contention. The instructions given were correct and the court properly refused Instruction “A”. It is therefore apparent that no error occurred in the giving and refusal of those instructions.

Mr. Gansloser took the witness stand in order to identify defendant’s confession. On cross-examination defendant brought out the fact that the witness also took statements from the others who participated in the assault. He attempted to prove that each of these persons stated that the cluster of bricks fell on Coleman’s chest. The court sustained an objection to the effect that the statements sought were hearsay. Defendant contends that the court erred in its ruling because the statements were admissible as declarations against interest. He relies on Sutter v. Easterly, 354 Mo. 282, 189 S.W.2d 284, 162 A.L.R. 437, wherein an incriminating affidavit was held to have been admissible where the affiant refused to testify on the ground he might incriminate himself.

We have concluded that the court did not err in excluding the proffered testimony. One reason is that defendant did not comply with the requirement of the Easterly case by showing that the declar-ants were dead, insane, or otherwise unavailable for testimony. They were not shown to be out of the state and were not placed on the stand and required to either testify or claim their constitutional right against self-incrimination. In that connection we note that one of the boys did testify for the State.

We also observe that the statements in question would have been merely cumulative. There was no direct evidence in the case to the effect that the cluster of bricks struck Coleman’s head. The only testimony was that it struck his shoulder and chest. The proffered declarations would have been additional evidence to the same effect.

In addition to the foregoing we note that the rule generally applied in criminal cases is that the hearsay rule excludes from evidence extrajudicial declarations of the commission of criminal acts. See Anno. 162 A.L.R. 446, 450. For all the reasons mentioned we rule this contention against defendant.

In his motion for new trial defendant alleged that a newspaper containing an article concerning this case was found in the jury room after the jury had completed its deliberations. Upon the hearing of the motion defendant presented the testimony of a juror who said he had purchased the paper and had taken it to the jury room. He denied, however, that he had seen the article. Another juror was produced who stated that he saw the paper in question but only read the sport section. There was no evidence that any juror saw the article. Defendant contends that the court erred in failing to grant a new trial because the article was available to the jury and it is likely that some of the jurors read it.

We do not agree with defendant’s contention. The fact that some juror might have seen the article would not warrant the granting of a new trial. Since there was no evidence that any juror actually saw the article we rule that the court properly denied a new trial on that assignment. State v. Darrow, Mo.Sup., 104 S.W. 2d 249 [8]; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98 [13]; Mayor, etc. of City of Liberty v. Boggess, Mo.Sup., 321 S.W. 2d 677 [12].

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

The judgment is affirmed.

All concur.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Ernest McCLAIN, Appellant.
    No. 51756.
    Supreme Court of Missouri, Division No. 2.
    June 13, 1966.
    As Modified on Court’s Own Motion and Motions to Transfer and for Rehearing Denied July 11, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Joseph S. Boland, Sp. Asst. Atty. Gen., Clayton, for respondent.
    Harry J. Stadin, J. Raymond Dyer, St. Louis, for appellant.
   EAGER, Presiding Judge.

Defendant was found guilty by a jury of first degree robbery and, upon a finding of prior felony convictions by the court, he was sentenced to a term of ten years’ imprisonment. He was ably represented at the trial, and here, by two appointed attorneys. A lengthy and detailed motion for a new trial was overruled by the lapse of 90 days, in accordance with Criminal Rule 27.20, and the defendant has appealed as a poor person, with transcript furnished gratuitously. Counsel assign as error the denial of defendant’s motions for acquittal, but not on the insufficiency of the evidence. We shall not, therefore, state the evidence in any considerable detail.

The evidence at the trial developed the following facts. Gilbert Powers, age 65, conducted a small confectionery store at 1300 South 9th in the City of St. Louis. The business was owned by Adie Goskie, who divided the profits with Mr. Powers. Mrs. Powers ran the store during certain hours. On March 8, 1965, Powers was in charge of the store when at “approximately twelve o’clock” a Negro man came in, went to the “dairy case” and took out a 12-ounce bottle of Pepsi-Cola, brought it over and set it on the counter near the cash register; at that point he dropped some change and stooped down; Powers walked a few steps, apparently toward the man, then turned “to walk back”; as he turned, the man hit him on the head with the unopened bottle, shattering the glass into many pieces. Powers further testified: that the man was standing practically against the counter and within reach of the cash register; that he saw the man reach over the counter, go into the cash register and take the bills which were there, although he did not actually see him “press the key”; when the man left, the cash register was open whereas it had previously been closed, and, upon checking it later, the money was found to be about $18 short. Powers’ head was cut and he testified that the blow “kind of shocked me” (obviously an understatement). The police were called, Powers went to the hospital for only a brief emergency treatment and returned. On March 11, 1965, defendant was brought to the store by two detectives who had arrested him upon suspicion of this robbery. When they came in. Powers spoke first and said, “Well, I see you have got my boy.” Powers positively identified the defendant as the robber, then, at the preliminary hearing, and at the trial. He testified that he had seen him in the store perhaps eight to twelve times previously during a period of two or three months, and that he had seen him twice previously on that same morning; once he had come in and bought a “coke,” but had gone out; the other time he had walked by and looked in. On both occasions there was a customer in the store. Powers testified that the topcoat which defendant was wearing when arrested was “similar” to the one the robber was wearing, but that he thought the hat the robber was wearing was “darker” than the one defendant wore when arrested. Powers described the robber to the police as thin, about 35 years of age, and about five feet five or six inches tall; he also described the clothing the man was wearing. The defendant was arrested on suspicion of the robbery, largely or entirely from the descriptions given. A Mrs. Cochran who lived across the street from the store saw a man running about 8 feet from the window where she was sitting, immediately after the robbery; she gave the police a general description, including a description of the clothing he was wearing, but she did not see his face.

Defendant denied participation in the robbery when arrested, when taken to Mr. Powers, and at the trial. When confronted with Mr. Powers, he called the latter by name but immediately stated that he had an “alibi,” although he had not yet been told what time of the day the robbery had occurred. In the State’s case, Robert Len-zini, United States Probation Officer, testified that on March S, 1965, he had left word at defendant’s home for him to report on March 8, 1965; that defendant had come in at 9:50 a. m., but Lenzini was not there and he left; that defendant came back some time after 1:00 p. m. and talked with the witness; that defendant was then under his jurisdiction. Defendant’s grandmother and sister testified: that on March 8,1965, defendant left the home in the morning to go to the Parole Office; that he came back about 10:15 and stayed there until 12:30; that the grandmother then gave him forty-five cents for his bus fare and he again left for the Parole Office. The defendant testified in his own behalf. He stated that he arrived at the Parole Office at 9:30 or 9:35 a. m. on March 8, found that Mr. Lenzini was not there and he went back home; that he again left home about 12:30 for the Parole Office, after his grandmother had given him the forty-five cents for bus fare. He further testified: that he knew Mr. Powers when he had a store on South Broadway and was a customer, that he had been in Powers’ present store twice, that he was not at the store on March 8, 1965, took no money, hit no one with a bottle, was not even in South St. Louis on that day, and that he was five feet ten inches tall. On cross-examination he admitted three convictions in Illinois for the possession of narcotics, one in Missouri for the possession, stealing and transportation of narcotics, one stealing and one forgery conviction in Illinois, and one stealing conviction in Missouri. When the defendant put on the coat and hat that he was wearing when arrested and was thus presented to Mrs. Cochran, she said: “I couldn’t say. But it looks the same except the hat. Now, the hat seemed to be darker.”

The points made here by defendant’s counsel are, in substance: (1) that defendant was deprived of his right to due process and to a fair trial because he was deprived of counsel at his preliminary hearing, that his motions for acquittal and for a new trial should have been sustained for that reason, and he claims prejudice thereby; (2) that the trial court erred in considering that the preliminary hearing was merely an inquiry to determine probable cause, since it really went “to the question of whether or not defendant was the offender,” and constituted a critical stage of the proceedings; also, that defendant was prejudiced by the erroneous testimony of an officer at the preliminary hearing as to the time, place and date of defendant’s arrest; (3) that the court erred in allowing the State’s attorney to cross-examine defendant concerning the two prior felony convictions alleged in the information, he having already admitted them outside the presence of the jury, and also concerning five other convictions, not included; (4) that the court erred in admitting a 12-ounce bottle of Pepsi-Cola in evidence, it not being the bottle in question, not the “best evidence” and not relevant to any disputed issue.

Defendant’s Points 1 and 2 may be combined in our discussion. On the first point, namely the lack of counsel at preliminary, counsel cite White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, and State v. Owens, Mo., 391 S.W.2d 248; then, as a somewhat novel approach, they attach a copy of the July 6, 1965, “Defender Newsletter” of the National Legal Aid and Defender Association, as their brief on the point. That publication cites and discusses various and sundry cases, State and Federal, pro and con, on the right to counsel at preliminary hearing. We do not propose to review all those cases here; we shall mention three. In Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, the court held that a defendant was entitled to the appointment (or selection) of counsel a sufficient time in advance of trial to permit effective preparation and effective aid at the trial. In the present case trial counsel was appointed on April 7,1965, and the trial commenced on June 2, 1965. The issues were very simple and we find no impingement upon that requirement. We mention also the cases of Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed. 2d 193. We have previously discussed those cases at length and have held specifically that the mere lack of counsel at a preliminary hearing held under the Missouri practice is not a deprivation of due process or of any other constitutionally protected right. State v. Engberg, Mo., 391 S.W.2d 868; State v. Phelps, Mo., 384 S.W.2d 616; State v. Gagallarritti, Mo., 377 S.W.2d 298; State v. Worley, Mo., 383 S.W.2d 529; State v. Turner, Mo., 353 S.W.2d 602; State v. Small, Mo., 386 S.W.2d 379; State v. McMillian, Mo., 383 S.W.2d 721. Counsel seem to rely upon a statement made in the opinion of State v. Owens, Mo., 391 S.W.2d 248, 253, to the effect that a preliminary hearing “may be ‘a critical stage’ and what happens there may in some situations and some circumstances, not involved here, infringe fundamental rights, * * But that statement was immediately followed by these further statements: “ * * * but a preliminary hearing in Missouri ‘is not a trial of the accused for the offense alleged in the complaint but merely an inquiry to determine if there is probable cause to believe that a felony has been committed and that the accused is the offender so that he may be bound over and formally charged in the circuit court or discharged if probable cause is not found.’ State v. Turner, Mo., 353 S.W.2d 602, 604. In the Phelps and Turner cases and in State v. Gagallarritti, Mo., 377 S.W.2d 298, as indicated, the decisions of the Supreme Court of the United States down to December 1964 were examined and their determinative and distinguishing factors noted and it is only necessary here to briefly examine the cases since that date in the light of this record.” The statement relied upon, as quoted above, apparently referred to the practice existing in other jurisdictions, such as Maryland, or to exaggerated situations where the state had “overreached” a defendant, if such is possible under our practice. The statement certainly should not be considered as an attempt to alter the line of decisions previously and concurrently (Engberg) adopted by this court.

Counsel necessarily claim, in view of our prior decisions, that the defendant was prejudiced at his trial by the lack of counsel at the preliminary hearing. That claim is wholly unfounded. A transcript of that hearing appears in the present record, and defendant’s counsel were furnished with a copy of the transcript prior to trial, an unusual but perhaps commendable procedure. Counsel rely upon certain discrepancies between the testimony given at the preliminary hearing and that at the trial. For instance, one officer testified at the preliminary that defendant was arrested on March 8, at about 1:00 p. m. instead of March 11; Mrs. Cochran, the woman who lived across the street, was not called as a witness at the preliminary; and that Mr. Powers, the victim of the robbery, fixed the date of the robbery in his testimony at the preliminary as March 19, instead of March 8; that he also testified there that he dropped some change on the floor and stooped, whereas at the trial he testified that the defendant did so; and also certain claimed differences in Mr. Powers’ observations of the manner in which defendant got the money from the cash register, which latter were and are wholly inconsequential. Counsel say that the stated difference in the date of arrest tended to implicate defendant by putting him in the neighborhood of the crime shortly after it occurred. The ultimate thrust of all this argument is to the effect that defendant, with counsel, could have cross-examined and discredited Mr. Powers and the officer, that defendant would have testified himself, that he would have produced his alibi witnesses, that he might have produced Mrs. Cochran, whose identification of defendant was less certain than that of Powers, and that he might thereby have persuaded the Judge of the Court of Criminal Corrections to find that there was no probable cause to believe that defendant was the one who committed the robbery. The positive identification of the defendant by Mr. Powers was, in and of itself, a sufficient ground for a finding of probable cause. The speculations of counsel, as outlined, are wholly insubstantial and the facts thus relied on could not possibly be held to have constituted legal prejudice. The discrepancies in testimony were all corrected at the trial and defendant’s counsel had the added advantage of cross-examining the witnesses there from the transcript of their testimony at the preliminary. If the discrepancies made any difference, which we doubt, they would seem to have worked to the defendant’s advantage in the trial. The Court of Criminal Corrections did not convict him, — the jury did, after having heard a full comparison of all evidence so far as desired by the defendant. We note here also that defendant’s counsel had in his possession at the trial an apparently complete copy of the police reports on the robbery. The defendant was in nowise deprived of any constitutional rights,, and Points 1 and 2 are denied. We note further that, while we do not rule the contentions upon that ground, there is authority to the effect that any complaint concerning a preliminary hearing or the lack of one should be raised by pre-trial motion. State v. Turner, supra; State v. Owens, supra. See, also, State v. Richardson, Mo., 347 S.W.2d 165; State v. McMillian, Mo., 383 S.W.2d 721. That practice was not followed here.

The next point made is that the court erred in permitting the defendant to be cross-examined concerning his prior felony convictions, particularly since he had admitted, outside the presence of the jury, the two which were contained in the information in support of the Second Offender charge. No objection whatever was made to any part of that cross-examination; this, in itself, is a complete answer to the contention. But we add here a reference to the well established principle that, where the defendant elects to take the stand in his own behalf, his credibility may be attacked like that of any other witness, and in this there may be a showing of prior convictions. Sections 491.050 and 546.260, RSMo 1959, V.A.M.S.; State v. Wolfe, Mo., 343 S.W.2d 10; State v. Byrth, Mo., 395 S.W. 2d 133; State v. Washington, Mo., 383 S.W.2d 518. The case of State v. Dunn, Mo., 309 S.W.2d 643, cited -by defendant, has no applicability whatever to the present situation. If, after admitting the prior convictions pleaded in the information, defendant had elected not to testify, thén no previous convictions could have been shown to the jury. But he did elect to testify, and all convictions were properly shown to affect his credibility. There is no substance whatever in this point. Counsel say that the cross-examination “won this case.” If so, that is the chance that such a defendant takes when he elects to testify.

The last point made is that the court erred in admitting into evidence a 12-ounce Pepsi-Cola bottle and its contents. It was not claimed that this was the bottle used by the defendant, and the State only used the exhibit to give the jury visual evidence of the instrument used. The original unopened bottle was shattered on Mr. Powers’ head; the neck apparently remained, and some question is raised now as to why it was not produced. We cannot answer that question, but we do rule that State’s Exhibit No. 1, the bottle and contents, was admissible. The objection made was that it was not “evidence that the incident happened. This is another bottle we don’t know anything about.” Mr. Powers specifically described the bottle actually used as a 12-ounce bottle of Pepsi-Cola, and as the only size that he carried; he further testified that the exhibit was “similar” to the bottle with which he was struck. There can be no doubt that two 12-ounce unopened Pepsi-Cola bottles are alike.

It is not necessary that every exhibit shall, in itself, prove the offense, or any material fact in issue. Demonstrative evidence is generally admissible if it is relevant, even though oral descriptions of the object might be given or have been given, provided there is no specific reason of policy or principle to the contrary. State v. Wynne, 353 Mo. 276, 182 S.W.2d 294; State v. Miller, 364 Mo. 320, 261 S.W.2d 103. It is true that generally “objects not connected with the defendant or the crime are not admissible unless they possess some probative value.” Wynne, supra. But models, casts and reproductions of relevant objects which are not available may be received, in the discretion of the court; this, of course, assumes that the reproduction, or model, fairly represents the conditions which it is offered to show. 22A C.J.S. Criminal Law § 708, pp. 945-946; Ford v. State, 222 Ark. 16, 257 S.W.2d 30; Dolan v. United States (CA 8), 218 F.2d 454. Our courts have held that physical objects not specifically involved in a crime may be admitted in evidence if sufficiently relevant as demonstrative evidence. State v. Looney, Mo., 204 S.W. 25; State v. Cain, Mo.App., 31 S.W.2d 559; and see, generally, State v. Thresher, Mo., 350 S.W.2d 1. Here there was no doubt whatever of the exact similarity of the two bottles, nor of the fact that the one actually used in the robbery was substantially destroyed at the time. There was no deception and no one could possibly have been misled; nor was there anything inflammatory about the exhibit. This is not a case where the prejudice engendered by an exhibit is deemed to outweigh any possible relevancy which it may have. State v. Creed, 299 Mo. 307, 252 S. W. 678. The use of the bottle as a weapon was, under the circumstances of this case, the means of violence relied upon by the state in prosecuting defendant under the provisions of § 560.120, RSMo 1959, V.A. M.S.; thus, the demonstrative exhibit was very definitely relevant to one of the issues. Defendant’s counsel concede that the “admissibility of demonstrative evidence lies entirely within the discretion of the trial court,” but assert that the court’s discretion was abused here. We hold that it was not, and that there was no error in receiving the exhibit.

We find no reversible error in those parts of the record which we examine independently under Rule 28.02. The judgment is affirmed.

All of the Judges concur.