author: FINCH, Judge.

text:
    Floyd BECKER, J. R. Baker, and St. Francois County, Missouri, Plaintiffs-Appellants, v. TOWER NATIONAL LIFE INVESTMENT COMPANY, a Corporation, Defendant-Respondent.
    No. 51213.
    Supreme Court of Missouri, Division No. 2.
    Sept. 12, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Oct. 10, 1966.

      Roberts & Roberts, by Raymond R. Roberts, Farmington, for appellant, Floyd Becker.
    Daniel, Clampett, Ellis, Rittershouse & Dalton, William A. R. Dalton, Springfield, for respondent, Tower Nat. Life Investment Co.
   FINCH, Judge.

Plaintiff Becker brought suit in two counts based on a subscription agreement for the purchase by him of 2,000 shares of stock in defendant Tower National Life Investment Company, herein referred to as Tower Investment. The suit alternatively sought issuance of 2,000 shares of stock or $40,000, the alleged value thereof. The case was tried without a jury. The trial court held that the subscription agreement submitted by Becker was rejected by Tower Investment and denied recovery to Becker on either count. The court’s decree provided for return of the original payment made by Becker at the time he submitted the subscription agreement, but directed that it be paid to plaintiff Baker who had been brought in by the interpleader proceeding. Only Becker filed a motion for new trial and he appealed after it was overruled.

The primary question for determination is whether the subscription agreement for 2,000 shares was accepted by Tower Investment, as Becker contends, or whether it was rejected, as the trial court held. In a jury-waived case we review de novo and reach our own conclusion. Schmitt v. Pierce, Mo., 344 S.W.2d 120.

Tower Investment was organized as a Missouri corporation on April 12, 1963. Thereafter it caused to be organized on September 23, 1963, a Missouri insurance company named Tower National Life Insurance Company, herein sometimes referred to as Insurance Company. Tower Investment issued a prospectus offering for sale to residents of Missouri 950,000 shares of its stock at $2.00 per share. After payment of specified commissions and expenses, the funds were to be used by Tower Investment for the purchase of all the stock in Insurance Company. Attached to the prospectus was a printed form of subscription agreement to be used by prospective purchasers. The signed subscription agreement, accompanied by a remittance for the stock sought to be purchased, was to be submitted to Tower Investment. The subscription agreement included a provision reciting that it and the prospectus “contain the entire agreement between the subscriber and the corporation.”

On December 20, 1963, at Farmington, Missouri, Becker executed and delivered to Frank Wolf, an authorized agent of Tower Investment, a subscription agreement for 2,000 shares of Tower Investment stock for $4,000. A check for $4,000 was delivered to Agent Wolf by Becker. Wolf signed the subscription agreement as licensed agent of the company and transmitted it and the $4,000 check to the Home Office of Tower Investment at Springfield, Missouri. Subsequently, Becker’s check was deposited by Tower Investment in an escrow account in the Citizens Bank at Springfield, and the check was paid on presentation to the bank on which drawn.

Tower Investment issued no stock to Becker and it contends that the subscription agreement submitted by Becker was rejected by a letter to Becker dated January 31, 1964. That letter read as follows:

“We have your subscription request for 2,000 shares of Tower National Life Investment stock. We had a letter from the Attorney General of Missouri asking that we not issue this stock. A copy of his letter is enclosed.
“As you have been informed the stock issue was completed and since the Attorney General had requested that we not issue said stock to you, it was necessary that we not accept your subscription so that the stock offering could be completed in full. Therefore, your $4,000 is being held by the Citizens Bank of Springfield in a suspense account waiting for the Attorney General or the court. This matter is being handled by our law firm, Walker, Daniel, Clampett, Rittershouse & Ellis.
Yours very truly,
TOWER NATIONAL LIFE INSURANCE CO.
(Signed) Paul H. Power Chairman of Board and Chief Executive Officer.”

No evidence was offered of any earlier communication, either written or oral, from Tower Investment to Becker.

Becker contends that the letter of January 31 was not effective as a rejection of the subscription agreement because (1) Tower Investment by its prior course of action already had accepted the subscription agreement, and (2) the alleged rejection asserted was not in accordance with the provisions of the subscription agreement in that the purported letter of rejection was not from Tower Investment (it was from Insurance Company, not a party to the agreement) and the monies paid by Becker were not refunded as required by the provisions of the subscription agreement in the event of rejection.

It is clear that Tower Investment expressly retained a right to reject a subscription agreement submitted to it. The subscription form provided that “The company may reject this application by refunding all monies paid hereon.” Furthermore, the prospectus was clear that acceptance was necessary for the agreement to be complete. Under the heading “Manner of Sale” it provided, “Sale is effected by the execution of the form subscription agreement when accompanied by a check, draft or money order and accepted by the Company.” Prior to acceptance, the subscription agreement was merely an offer to buy stock. Consequently, our first question must be whether Tower Investment did in fact accept the subscription. If it did, a binding contract with necessary mutuality was created and the company could not reject the subscription at a later date without the consent of the subscriber.

We have concluded that the Becker subscription agreement was accepted by Tower Investment prior to its letter of rejection to Becker dated January 31, 1964. There was no express written acceptance communicated to Becker, but the course of conduct of Tower Investment, considered in the light of the provisions of the prospectus and the ancillary escrow agreement, shows an acceptance. The law recognizes that a proposal may be accepted in this manner. “A subscription need not be accepted by the corporation in any particular way, unless this is required by the charter or statute, or expressly or impliedly by the subscription itself, but may be inferred by the conduct of the corporation in entering it in its books, retaining it, demanding payment, or otherwise acting upon it.” Fletcher, Cyc. Corp. (Perm.Ed.), Vol. 4, § 1406.

The prospectus provided for an “escrow bank” which was to be the Citizens Bank of Springfield, Missouri. An escrow agreement dated September 24, 1963, was executed by Tower Investment, the Citizens Bank and the Commissioner of Securities for the State of Missouri. The Citizens Bank did act as escrow agent in connection with the sale of stock pursuant to the prospectus and the Becker check was deposited in that account.

The prospectus, under the heading “Duties of Escrow Agent,” provided that “All funds received by the company as a result of the sale of shares under this offering shall be placed in escrow and handled in the manner hereinafter set forth.” It goes on to provide that “When funds received from the sale of stock under this offering reach $1,000,000.00,” the escrow agent shall disburse specified sums to cover commissions and expenses, and, after the entire proceeds of the sale of stock have been deposited, complete the purchase of the stock of Insurance Company. These provisions refer only to proceeds from the sale of stock. There is no provision for deposit in this escrow account of subscribers’ remittances pending acceptance, and no provision authorizing withdrawal of funds from the escrow account for the purpose of refunding to subscribers if their subscription is rejected.

This interpretation of the language of the prospectus is confirmed by language used in the escrow agreement entered into between Tower Investment, the Citizens Bank and the Commissioner of Securities. Paragraph 1 provides that funds received “upon the execution of the sale of shares of stock” shall be deposited. Subpara-graphs (a) and (b) relate solely to the handling of funds received from the sale of stock. Subparagraph (c) provides for temporary investment of funds in the hands of the escrow bank, a provision not likely to be intended for funds belonging to a subscriber whose offer to buy has not been accepted. Paragraph 2 provides that Tower Investment, simultaneously with acceptance of a subscriber’s subscription agreement and the tender of funds, shall deliver those funds to the escrow bank along with certain other data for its records.

Tower Investment makes the point that the subscription agreement and the prospectus constituted the entire agreement between the company and Becker, and that the latter’s rights thereunder may not be changed or enlarged by the escrow agreement, to which he was not a party. We agree. This does not mean, however, that we may not look to the provisions of the escrow agreement for assistance in construing the language of the prospectus and interpreting the conduct of Tower Investment in depositing the check in the escrow account. The provisions of the escrow agreement clearly indicate that Tower Investment and the Commissioner of Securities interpreted the language of the prospectus as contemplating that only proceeds from accepted subscriptions were to be deposited in the escrow bank, this to be done as and when the subscriptions were accepted. Consequently, we must conclude that Tower Investment knew when it deposited the Becker check in the escrow bank that the funds were committed to the uses and purposes specified in the prospectus, and that this was to be done only following acceptance of the subscription agreement. The deposit of the Becker check in the escrow account under those circumstances constituted an acceptance of the subscription.

It will be observed that Paragraph 3 of the escrow agreement permits the Commissioner of Securities to release funds to Tower Investment on substantial completion of sale of the stock. Tower Investment argues that this shows funds could be released from the escrow bank under circumstances other than complete sale of 950,000 shares of stock, and that this implies a right to withdraw funds for the purpose of refunding to a subscriber whose subscription agreement was rejected. We find no comparable provision in the prospectus, but, even if there were, this is a limited authorization consistent with the idea that funds on deposit are irrevocably-committed to completing the uses and purposes expressed in the prospectus, and is not authority for any release of funds by the escrow bank to a subscriber on the basis that subsequent to the deposit his subscription agreement was rejected by Tower Investment.

Another provision in the escrow agreement relied on by Tower Investment is Paragraph 4. It provides for reimbursement of subscribers in the event of the dissolution or liquidation of Tower Investment prior to the issuance of stock in said company. Tower Investment argues that this indicates that there had been no acceptance of the subscription agreements. We ascribe no such meaning to this provision. Clearly, funds of subscribers on deposit with the escrow bank were irrevocably committed to the purposes spelled out in the prospectus. Paragraph 4 is intended to be operative solely in the event Tower Investment is liquidated and there is resulting impossibility of delivery of stock to any subscribers.

Finally, Tower Investment suggests that a provision under the “Miscellaneous” heading of the prospectus indicates that all funds would be deposited in the escrow bank when received by it. The paragraph referred to is as follows: “Subscriptions are made by completing the Subscription Agreement. At the time of execution each subscriber shall submit his check, draft or money order in full payment for the shares subscribed. The funds will be held by the Escrow Bank and the net proceeds will be paid to the company.” We do not interpret this language to mean that every check is to be deposited in the escrow bank as soon as received, regardless of whether the subscription has been accepted. It provides for payments to the company only, and then of the net proceeds, which would be after deduction of commissions and expenses. This can have reference only to proceeds from actual sales (accepted subscriptions) because unaccepted subscriptions are not subject to deductions, and such payments would be to the subscribers, not to the company. We find nothing in this provision inconsistent with earlier sections of the prospectus which provide for the deposit of sales proceeds only in the escrow bank.

Since we have held that there was an acceptance of Becker’s subscription agreement, we need not concern ourselves with the question raised by Becker as to whether the asserted revocation was in compliance with the provisions of the subscription agreement.

We come then to the question of what relief is to be given to Becker. Since this is an action on a written contract and defendant’s evidence fails to show any defense thereto, we should enter judgment here or remand with directions to the trial court. Central States Life Ins. Co. v. Bloom, 345 Mo. 982, 137 S.W.2d 517; § 512.160, RSMo 1959 and V.A.M.S.

Count I of plaintiff’s petition sought specific performance of the contract to deliver 2,000 shares of stock. This count seems to have been abandoned, even though never formally dismissed. Becker’s motion for new trial complained of the failure of the trial court to enter judgment for the value of the stock on the date stock was issued to others by Tower Investment, but made no reference to failure of the court to grant relief on the count for specific performance. Becker’s brief on appeal says nothing about specific performance. The only reference in defendant’s brief on appeal to the question of relief is a statement that apparently the measure of damages in Missouri for failure to issue corporate stock is the reasonable value of the shares at the time of failure to deliver same. Furthermore, there was no evidence offered to show the plaintiff’s remedy at law for damages was inadequate. Cases which have granted specific performance of a contract to sell shares of stock have made such evidence a requirement. Wood v. Kansas City Home Tel. Co., 223 Mo. 537, 123 S.W. 6. Consequently, we will not consider equitable relief in the form of specific performance, but will award damages instead.

There are at least two lines of authority as to the proper measure of recovery for breach of a contract to issue and deliver stock. The more widely followed rule fixes as the proper measure of damages the value of the stock at the time of its conversion or at the time of refusal to issue. A rule sometimes referred to as the New York rule permits recovery of the highest value attained by the stock between the time of the conversion or refusal to issue and a reasonable time after the owner has received notice so as to permit him to replace the stock. Missouri seems to follow the majority rule. Brinkerhoff-Faris Trust & Savings Co. v. Home Lumber Co., 118 Mo. 447, 24 S.W. 129; National Surety Corp. v. Hochman, Mo.App., 313 S.W.2d 776. See also St. Louis Perpetual Ins. Co. v. Goodfellow, 9 Mo. 149, although the court in this case noted that there had been no subsequent increase in the value of the stock and that the court was not called upon to decide what, if any, effect such a circumstance would have on the amount of recovery. See also Ostrander v. Messner, Mo.App., 223 S.W. 438.

It is stated in Fletcher, Cyc. Corp. (Perm. Ed.), Vol. 11, § 5117, p. 217, that the New York rule seems to be growing in favor. It is pointed out that in some circumstances mere recovery of the value at the time of the conversion or refusal to deliver does not adequately compensate the plaintiff, particularly in circumstances where the value of the stock is fluctuating and the party does not have knowledge thereof in time to protect himself by purchasing other stock. Under the facts of this particular case, that situation does not exist because Becker knew when he received the letter of January 31, 1964, that Tower Investment was not going to issue stock pursuant to his subscription. Stock was actually issued to others on February 6, 1964, and there was evidence that sales of the stock at that time and immediately thereafter were made, so that it would appear that Becker could have gone into the market and purchased other stock if he had so desired. There is no occasion, therefore, under the facts of this case, for us to consider whether we might follow the New York rule under appropriate circumstances, and we express no opinion thereon.

There was a conflict in the testimony as to the value of stock in Tower Investment at the time of its issuance to other subscribers on February 6, 1964. Bill Wendt, a salesman for Reinholdt & Gardner in their Springfield, Missouri, office, testified as a witness for defendant that he sold Tower Investment stock in February 1964 for $6.00 per share. He made sales in March of that year at $8.75 and $9.50 per share, and in April at $10.00 per share. Value at the time of trial was $3.50 bid and $4.50 asked. Frank Wolf, who had been an agent for defendant and took the subscription agreement from Becker, testified for plaintiff that “immediately or shortly thereafter it was trading in the area of Ten Dollars a share.” Plaintiff Baker testified that the stock was selling at $10.00 per share immediately after issuance.

We have concluded that the most convincing testimony as to the value of the stock was that of Bill Wendt, who had made actual sales in February at $6.00 per share. Familiarity with values of stock was necessary in his business of working as a salesman for a brokerage firm. Witness Wolf was not so specific as to price or time. Accordingly, we find that the value of the stock on February 6,1964, the date of the breach, was $6.00 per share, and that recovery by plaintiff should be on that basis. Pursuant to the stipulation between Becker and Baker, the judgment should provide for recovery of $4,000 by Baker and $8,000 by Becker.

The judgment is reversed and the case remanded with directions to the trial court to enter judgment in accordance with the views herein expressed.

All of the Judges concur.

      . Plaintiffs Baker and St. Francois County were added as parties plaintiff on motion of Tower Investment, after which the latter filed a counterclaim in the nature of a bill in interpleader in which the court was asked to determine to whom the $4,000 originally remitted by Becker should be paid. The interpleader alleged that Becker, Baker and St. Francois County all asserted ownership of the $4,-000 remitted by Becker with the subscription agreement of December 20, 1963. St. Francois County was not represented at the trial. Baker and Becker stipulated at the beginning of the trial that Baker was to receive $4,000 out of any stock or money damages awarded Becker, and that if recovery was denied and the original payment ordered returned, it was to be paid to Baker.

      . It was stipulated that Frank Wolf was appointed agent by Tower Investment for the purpose of selling stock in that company. The Chairman of the Board of Tower Investment testified that Wolf had authority to sell 2,000 shares to one person in a county, subject to approval of the administrative office.

      . The contents of the letter of the Attorney General, as well as subsequent correspondence, are not detailed for the reason that it is not necessary or material to the conclusion we reach.

      . The escrow agreement, omitting caption, preamble, signatures, and the paragraph binding heirs, representatives, successors and assigns, was as follows:
      “1. Deposit of Proceeds of Sale. Upon the execution of the sale of shares of stock pursuant to the Escrow Agreement, the funds so received by the Securities Agent shall be deposited with the Escrow Agent and thereafter distributed in the following manner:
      “a) When funds received from the sale of stock under this offering reach $1,-000,000.00, the Escrow Agent shall reimburse the Company for commissions and expenses incurred in an amount not to exceed $126,000.00.
      “b) When the balance of the securities permitted to be sold in this offering have been sold, and the funds deposited with the Escrow Agent, the Escrow Agent will then reimburse the Company for the balance of commissions and expenses incurred in an amount which will not exceed $240,000.00, the maximum commissions and expenses authorized in this public offering.
      “c) When funds are received by the Escrow Agent from the Company, the Escrow Agent shall invest said funds in 90-day U.S. Treasury bills or short-term U.S. Treasury Notes in order to provide a yield with liquidity and safety.
      “d) When the duties set forth in paragraphs “a” and “b” have been discharged, the Escrow Agent shall then release to the Company the balance of the funds held upon receipt of written notice from the company, advising that all shares of stock authorized in the Prospectus have been sold.
      “2. Identification. The Company shall simultaneously, with the acceptance of each subscriber’s Subscription Agreement and tender furnished to the Escrow Agent, the funds received along with the name of the subscriber his address, and the number of shares for which subscription is made.
      “3. Substantial Completion. After the Company has sold a substantial number of shares offered by the Prospectus, should it thereafter become unable to complete the offering, the Commissioner of Securities, at Ms discretion, may cause the monies held in Escrow pursuant to this agreement, to be released to the Company.
      “4. Dissolution and Liquidation. In the event that the Company is dissolved and liquidated prior to the completion of this offering and the authority granted by the Commissioner of Securities to issue the shares offered in the Prospectus is thus terminated, the Company agrees that it shall bear the burden of all expenses and commissions expended or paid, and that the Escrow Agent shall return to each subscriber the monies tendered with his subscription.”

      . No evidence was offered to show that the $4,000 was withdrawn and placed in a suspense account, although the Insurance Company letter to Becker dated January 31, 1964, had stated this was done.

      . For a discussion of the measure of damages and citation of cases from various states, including Missouri, see Fletcher, Cyc. Corp. (Perm.Ed.), Yol. 11, § 5117. See also Annotation, 22 A.L.R.2d 62. Some cases deal with conversion of stock and others with refusal to issue or deliver or with refusal to register. The measure of damages is usually the same.


source: Caselaw Access Project

author: HOUSER, Commissioner. PER CURIAM:

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Wayne ESTES, Appellant.
    No. 51456.
    Supreme Court of Missouri, Division No. 1.
    Oct. 10, 1966.
    Norman H. Anderson, Atty. Gen., Donald R. Wilson, Asst. Atty. Gen., Jefferson City, Attorneys for Respondent.
   HOUSER, Commissioner.

This is an appeal from an order overruling motions filed under Criminal Rule 27.26, V.A.M.R., to vacate sentences and judgments in ten burglary and larceny cases filed against Wayne Estes. Ten transcripts were filed here under one docket number. All ten matters will be disposed of by this opinion.

The ten cases were filed in the 38th Judicial Circuit in March and May of 1952, during the term of office of Circuit Judge Tom R. Moore. On December 29, 1952 Judge Moore disqualified himself in four of the cases and Honorable William Collinson, Judge of the 23rd Judicial Circuit, was called as Special Judge to try those four cases. Judge Collinson assumed jurisdiction and appeared for the purpose of setting the four cases for trial. Prior to the date of trial defendant escaped and fled the jurisdiction. On May 29, 1953 the court ordered the cases stricken from the docket, but they were not dismissed. The ten cases were reinstated on the docket on August 22, 1960, defendant in the meantime having been taken into custody. Between his escape in 1953 and his return in 1960 defendant had served time under convictions in Arizona and in a federal court. On August 22, 1960, at the request of defendant and his counsel, the regular judge of the circuit, Judge Crain, called a special term of court upon proper waiver of time for the purpose of disposing of the ten cases. Defendant, accompanied by his attorney, was arraigned before Judge Crain and in each of the ten cases he entered a plea of guilty. Judge Crain sentenced him in each case to 5 years for burglary and 5 years for larceny and ordered in each case that the two 5-year terms run concurrently. On the same day, in each case, Judge Crain made an order directing that the sentence and judgment be suspended until the further order of the court on condition that defendant be placed under the supervision of the state department of probation and parole. In one case there was a further condition that defendant post a $5000 appearance bond.

On May 28, 1962 “the court” made the following order: “Parole revoked. Alias capias warrant ordered issued.”

On June 1, 1964 defendant, accompanied by his attorney, appeared in court before Judge Crain, the regular judge of the circuit, at which time defendant’s counsel asked the court to reinstate the suspended sentences. Judge Crain refused to grant further lenience, ordered commitments to issue in accordance with the original sén-tences and ordered that the sentences in the ten cases run concurrently. Defendant was taken into custody and delivered to the penitentiary.

On September 9, 1964 defendant, by and through his counsel, filed motions under Criminal Rule 27.26 to vacate the sentences and judgments, alleging that at the time his pleas were entered on August 22, 1960 he was on parole from a federal penitentiary and that after the pleas were entered in the ten cases the court granted probation “to run concurrently with defendant’s Federal Sentence.” Based on this postulate the motions further alleged that the federal government had priority of defendant’s person, and that under the law of comity the Missouri court, by ordering the 5-year sentences “to run concurrently with Federal Probation,” waived or relinquished jurisdiction over defendant to the federal government; that the 5-year sentences in the ten cases did not stop running when the orders suspending the sentences were made, and did not become “dormant,” but continued to run, because the state and federal sentences were concurrent. His position is that after completion and expiration of his federal sentence he could not be required to serve the state sentences — that the state sentences terminated and were satisfied upon the expiration of the federal sentence. The motions further alleged that “this Court disqualified itself in this case.”

The motions were considered, the circuit court finding in each case that the motion on its face “fails to state facts upon which relief can be granted,” and they were overruled. This appeal followed.

The case is before us on the original motions, defendant not having filed a brief, and not having appeared personally or by counsel on this appeal.

The court did not err in summarily disposing of the motions as a matter of law. No genuine issue of fact was made. Defendant made the unsupported allegation that the court granted probation to run concurrently with the federal sentence, but this contradicts the record, which makes no reference whatsoever to the federal sentence or to federal probation. “ * * * [T]he defendant’s unsupported statements, in his motion or otherwise, will not be permitted to contradict the record so as to establish a fact issue. * * * If no issue of fact is made on a motion such as this the court may summarily dispose of it as a matter of law. * * State v. McDonald, Mo.Sup., 343 S.W.2d 68, 72. And see State v. Small, Mo.Sup., 386 S.W.2d 379 [7].

Defendant’s point that the State of Missouri relinquished jurisdiction over him to the federal government on the theory that the circuit court ordered that the sentences run concurrently, so that by serving his federal sentence he satisfied his obligations to the state, of necessity fails because it is based entirely upon an unsupported and false postulate.

Defendant claims that his constitutional rights were violated by unlawfully and illegally having extradited him on the detention warrant. This contention rests again upon the theory that the state waived its right to demand his return, which in turn is predicated upon the unproved, unsupported allegation of surrender of the defendant to the federal authorities. It must be rejected for the reason that it is an unsupported statement contradicting a court record and for the further reason that in a proceeding under Criminal Rule 27.26 we do not inquire into the validity of extradition proceedings under which the defendant has been returned to this jurisdiction, our concern being limited to the validity of the proceedings in this state after the defendant has been returned. State v. Donnell, Mo.Sup., 387 S.W.2d 508 [1, 2].

Turning to the bare and undeveloped allegation of the motions that the court disqualified itself, there is nothing to show that Judge Joe C. Crain, the duly elected and qualified regular judge of the circuit where these cases were pending, and who sentenced defendant in each of the ten cases, ever disqualified himself or that he was disqualified by the state or the defendant, or that his right to sit in these cases was ever challenged. On the contrary, the record in at least nine of the cases affirmatively shows that Judge Crain was never disqualified. The record contradicts the bald and unsupported allegations in the motions that this court disqualified itself, and we therefore rule that no fact issue was made on this facet of the case.

The judgments overruling the motions filed under Criminal Rule 27.26 are affirmed.

WELBORN and HIGGINS, CG, concur.

PER CURIAM:

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

All of the Judges concur.

      . Estes’ federal parole was revoked and he was returned to the federal penitentiary to serve the unexpired portion of his sentence on April 11, 1962, for parole violation and apparently was released from the federal penitentiary shortly before June 1, 1964.


author: HIGGINS, Commissioner. PER CURIAM:

text:
    STATE of Missouri, Respondent, v. James Robert ARCHER, Appellant.
    No. 51816.
    Supreme Court of Missouri, Division No. 1.
    Oct. 10, 1966.
    Robert G. Duncan, Pierce, Duncan, Beit-ling & Shute, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Clyde Burch, Special Asst. Atty. Gen., Kirksville, for respondent.
   HIGGINS, Commissioner.

Appellant was charged by information in the Circuit Court of Clay County, March 3, 1965, with the felonies of burglary in the second degree and stealing. A jury found him guilty and assessed his punishment at two-years’ imprisonment in the penitentiary on each charge. The court adjudged and sentenced appellant to serve the terms consecutively for a total of four-years’ imprisonment. Sections 560.070, 560.095, and 560.-110, V.A.M.S.

Trial began June 28, 1965, and the following evidence was adduced. Edward Glenn Ellington owned and operated a drive-in ice cream and sandwich shop known as Dairy-B in North Kansas City, Clay County, Missouri. On the night of January 14, 1965, he had valuable goods, wares, and merchandise and over $500 in currency at the Dairy-B. He kept the money in the office area in a metal box in a metal locker and, on the night of January 14, 1965, $478 was taken from the box and $40 was left there. He was not present when the business was closed at midnight, January 14, 1965. When he returned to the Dairy-B at 8:30 A.M., January 15, 1965, he found the side door glass broken and saw marks where a crowbar had been used to pry it open. The door was still cracked open; the locker had been pried open, and desk drawers were open. He called the police and they made an investigation. Ronnie Davidson, an employee of the Dairy-B, found the money box in a levee ditch about 200 feet from the Dairy-B. Ronnie Davidson continued working for Dairy-B for a while. He owned a red 1964 Ford and was at one time charged with, but not prosecuted for, the crime.

Charles R. Ross, detective with the North Kansas City Police Department, investigated the crime scene at 9:20 A.M., January 15, 1965 and noted the pry marks, broken door and glass, and the disorder in the office. A month after the burglary he ordered appellant brought in for investigation. During that interview appellant said he had been at Waid’s Restaurant in Antioch on the night of the crime when he heard James K. Page and Lee Kenneth Sheets offer a third person $20 to take them to North Kansas City. Appellant would not name the third person but, from identification of the subject’s automobile, a 1954 blue Buick, Detective Ross found that person to be Gary Reed. Appellant told Detective Ross also that Reed agreed to take Page and Sheets to North Kansas City; that they got out of the car at the Dairy-B; that they later returned; that Page and Sheets had plenty of money and used it to take up I.O.U.s for pool debts owed appellant. Appellant at this time denied any part in the crime and stated that he understood Page and Sheets had gone to New Orleans after the crime. According to Detective Ross, appellant testified upon preliminary hearing that he was in Kansas on the night of January 14 and the early morning of January 15, 1965. Page’s fingerprints were found in the Dairy-B and a coin changer and cash drawer were found at the place where appellant understood Page and Sheets to say the car waited while the crime was committed. Appellant and Gary Reed were arrested and charged with burglary and stealing later in the day of this interview.

Gary Michael Reed was playing pool with appellant at the Diamond Cue Poolroom in Antioch Shopping Center on January 14, 1965. They left about 11:15 P.M. and went to Waid’s Restaurant where they “discussed” the Dairy-B with James Page. Appellant and Page offered him $20 to take them to “Northtown” and wait for them to “burglarize the Dairy-B.” He agreed and drove them there in his 1954 blue Buick. When they arrived, the Dairy-B was still open and Ronnie Davidson’s 1964 red Ford was sitting in front. They drove over to the North Kansas City bowling alley and then returned. They drove by the Dairy-B, noting that it was closed and also noting the side door. They drove around the immediate area and “I stopped and let those two out, then I drove up a block back up Antioch Road and turned in and waited for them.” They returned in “about half an hour, forty-five minutes,” and they had a metal box with money in it. They gave Reed the $20 promised him and all went back to Waid’s and then Reed took them to Page’s home. They did not have a metal box with them when they got out of Reed’s car at the Dairy-B, and they had only the money at Waid’s. Reed pleaded guilty for his part in this crime.

James Keith Page was an outpatient at St. Joseph State Hospital at trial time but he was not an incompetent. He was at the Diamond Cue with Gary Reed and appellant and went with them to Waid’s in Reed’s Buick. At Waid’s they had a conversation which “involved a burglary and larceny” and the Dairy-B. He had learned that there was money at the Dairy-B. They drove to the Dairy-B and, upon finding it open, drove around to the bowling alley. Upon return to the Dairy-B, “Gary Reed let us out. * * * We waited until he’d gotten away from the place * * * Mr. Archer, he stayed on the outside and I broke in. * * * He was to be lookout. * * * He stood behind the restaurant that was connected with the locker plant. * * * I broke in. * * * was SUpposed to signal.” Page left once and returned and when he came out the second time appellant was standing at the door waiting for him. They ran to the car and split the money, approximately $300, except for the $20 paid to Reed. Page and a Kenneth Sheets went to Colorado about a week later and returned in March.

Appellant denied committing the crime and said that he was with Charles J. Williams at the Swingtown Club in Kansas City, Kansas, on the night in question. His version was that Page merely paid him some money owed to him.

Charles J. (Jerry) Williams said he met appellant at the Diamond Cue about 10 or 10:15 P.M., January 14, 1965, and that they went to a private club in Kansas where they stayed until about 2 A.M. He took appellant home about 3 A.M.

Robert E. Stephens said he saw appellant and Williams at the Swingtown Club in Kansas on a Thursday night in January 1965. Appellant arrived about 11 P.M. and left about 2:30 A.M.

Gwendolyn C. Stanberger, sister of Page, stated that appellant asked her to visit her brother in jail and tell him that appellant had set up an alibi for them.

There was testimony from Bonnie Jean Page, James’s mother, that appellant told her that if Page testified against him the whole family would “get it.” Richard Crain was present at that conversation and,. although recognizing that the argument “grew to a boiling point,” denied that appellant made threats to Mrs. Page.

Obviously the jury disbelieved appellant’s denial of guilt and his alibi, and the recited evidence was sufficient to sustain the jury’s finding that appellant was guilty of burglary and stealing. State v. Gridley, Mo., 353 S.W.2d 705, 706 [1, 2],

Appellant did not file a timely motion for new trial but contends that the verdict is “fatally defective, uncertain, indefinite and unresponsive to the charge,” and that the judgment “is not in accordance with the verdict (of) the jury assessing appellant’s punishment at a total of two years imprisonment.”

The transcript shows that “on June 29, 1965, the jury returned the following verdict :

“We, the jury find the defendant guilty of burglary and assess his punishment at two (2) years in the Missouri State Penitentiary.
/s/ Harold L. Porter
Foreman
“We, the jury, find the defendant guilty of stealing in conjunction with burglary and assess his punishment at two (2) years in the Missouri State Penitentiary.
/s/ Harold L. Porter
Foreman
“We further recommend, if it is within the law, that the two sentences above run concurrently.
/s/ Harold L. Porter
Foreman”

And the judgment, after reciting appearances, including that of appellant and his lawyer, and allocution, proceeds:

“IT IS THEREFORE, sentenced, ordered and adjudged by the court that the said defendant, in accordance with the verdict of the jury aforesaid, be confined in the Department of Corrections of the State of Missouri for the period of two (2) years on the burglary charge and for a period of two (2) years in the Department of Corrections of the State of Missouri on the stealing in conjunction with burglary charge, or be confined in the Department of Corrections of the State of Missouri for a total period of four (4) years; * * *.”

Appellant argues that the verdict finding appellant guilty only of burglary is not responsive and precise because it does not specify the degree of burglary, the elements of burglary in the second degree, nor refer to the charge of burglary in the second degree.

A verdict must be responsive to the issues submitted, State v. Hinton, 299 Mo. 507, 253 S.W. 722, 723 [2], and it “‘must be certain, positive, and free from all ambiguity. It must convey on its face a definite and precise meaning and must show just what the jury intended. * * * ’ ” State v. Rowe, 142 Mo. 439, 44 S.W. 266. This verdict does not contain an express finding of guilt of second degree burglary, but it is not erroneous because upon this record its meaning is not in any doubt. The record shows an information which charged appellant with but one type of burglary, burglary in the second degree; the evidence supports such a charge and the instructions properly submitted that charge. Reference to those matters shows beyond all doubt that appellant was charged, tried, and convicted of a burglary which could be only in the second degree, and the only question for the jury was whether appellant was guilty or not guilty of the burglary so charged and described. The jury found him guilty and assessed a punishment authorized by statute. Under such circumstances, recitals of “as charged in the information” or of the elements of the crime, although desirable, are not essential to a general verdict, State v. Saussele, Mo., 265 S.W.2d 290, 294 [5], and this verdict is thus sufficient to sustain the judgment of conviction of burglary in the second degree. State v. Webb, Mo., 382 S.W.2d 601, 605 [7]; State v. Mitts, Mo., 347 S.W.2d 677, 680 [3]; State v. Brewer, Mo., 338 S.W.2d 863, 867 [3]; State v. Villinger, Mo., 237 S.W.2d 132, 135 [6]; State v. Perry, Mo., 233 S.W.2d 717, 720 [3-5].

Appellant refers to the third paragraph of the verdict and argues that the judgment, although reciting that it is in accordance with' the verdict, is not so because it imposes consecutive two-year sentences for a total of four-years’ imprisonment rather than concurrent sentences of two years intended by the jury.

When a person is prosecuted and convicted for both burglary and stealing, he shall be punished for the stealing in addition to the punishment for burglary; and the jury, although possessed of alternatives or discretion “as to the kind or extent of punishment to be inflicted,” Criminal Rule 27.02, V.A.M.R., is not authorized to specify whether such punishments shall run consecutively or concurrently, that function being specifically a duty of the court. Section 560.110, supra. Thus, that portion of this verdict which would recommend concurrent sentences is just that, i. e., a recommendation; it is purely advisory, and is not binding upon the court.

Those matters for which no assignment of error is required have been examined as required by Criminal Rules 28.02 and 28.08, V.A.M.R. As previously stated, the information is sufficient and is in proper form; the verdict is responsive to the issues and assesses punishment within legal limits, and the judgment is in accordance with the verdict and the law. Appellant was duly arraigned and allocution was granted. In addition, he had the benefit of counsel of his own choosing throughout his trial, upon allocution, and upon this appeal.

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All concur.


author: STOCKARD, Commissioner. PER CURIAM.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. Rey EILERS et al. on Exceptions of Ransom E. Dudley and Louise Dudley, Appellants, Fulton National Bank, a corporation, and Clyde Boyd, Trustee, Defendants.
    No. 51448.
    Supreme Court of Missouri, Division No. 2.
    Sept. 12, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Oct. 10, 1966.

      Robert L .Hyder, Thomas E. Cheatham, Jefferson City, for respondent.
    Robert C. Smith, Columbia, for appellants, Smith & Lewis, Columbia, of counsel.
   STOCKARD, Commissioner.

In this action for condemnation of land for highway purposes the jury award of just compensation was $12,250 and the landowners have appealed. The difference between the award and that to which appellants contend they are entitled under their evidence exceeds $15,000.

Appellants’ property consisted of a triangular shaped tract of land containing 8.42 acres with 1,650 feet fronting on U. S. Highway 40 and 535 feet fronting on a county road. For use in the construction of Interstate Highway 70, respondent acquired 4.65 acres upon which was located some buildings used for commercial purposes and a well which supplied water to appellants’ house located on that part of the land not taken. Appellants contend in their first three points that the award is so inadequate that it denies them just compensation. In the remaining two points they assert prejudicial error resulted from the admission of certain evidence and from certain remarks and conduct of respondent’s counsel. If a new trial is required by reason of either of the last two points there would be no occasion to review the contention concerning the adequacy of the award. We shall, therefore, consider first the latter two points.

Appellants assert that the trial court “erroneously admitted into evidence photographs on behalf of the State of Missouri which had not been properly identified and which were taken long before and long after condemnation,” and which “did not correctly depict the appearance of the property at the time of condemnation and which deceived the jury and prejudiced them against the appellants.” Only from the argument in the brief can we determine to what photographs reference is made and the reasons why it is contended they were inadmissible. We shall set forth the factual circumstances pertaining to each such exhibit and group them when appropriate to do so.

Respondent’s Exhibit 4, to which no objection is now made, was an aerial photograph of appellants’ land. It was agreed that it did not show a building used for tire storage, and with this understanding the exhibit was admitted without objection. Respondent’s Exhibit 5, to which objection is' now made, was an enlargement of a portion of Exhibit 4. When offered in evidence appellants objected because “it does not show the tire storage building and there has been no evidence as to when this was taken, whether it correctly reflects the appearance of the property on June 11 of 1963, prior to condemnation * * The objection was overruled, and the witness then made reference to a ditch shown on the photograph.

Respondent’s Exhibit 2 was a photograph taken at ground level on March 12, 1962 of only a portion of the buildings on appellants’ land. It shows what appears to be a cluster of two or three frame buildings and a shed used for garage purposes, a wrecked or junked automobile, and a pile of debris consisting of old tires and junked automobile parts. Counsel for appellants brought out from the identifying witness that there was an additional shed not shown on the photograph, apparently because it was behind the buildings shown, but the witness stated that the photograph “portrays the front” of the buildings. The objection to this exhibit, which was overruled, was that “I don’t think there has been sufficient identification of that.” On rebuttal Mr. Dudley, one of the appellants, was asked if the photograph “correctly shows the appearance of those garage buildings as of the time of this condemnation,” and he replied, “No, it does not.” He then explained that he had “bought out” a salvage yard about that time and the debris shown in the photograph had come from that yard, and that because of muddy ground the debris had not been moved to his salvage yard. After this testimony there was no request made that the court withdraw Exhibit 2 from the evidence and instruct the jury to disregard it.

Respondent’s Exhibits 8, 9,11 and 12 were four photographs of a group of nine, all taken on August 5, 1963. Exhibits 8 and 12 show the condition of portions of the driveway, and were so identified by Mr. Dudley. Exhibit 11 was identified by Mr. Dudley as showing “a corner of my house” and “my garden.” The principal and predominate objects shown in the photograph were two old model automobiles parked on a grassy area. Exhibit 9 was identified by Mr. Dudley as showing the driveway, a hole “off of my driveway,” and a building “in the process of being tom down.” The objection to the admission in evidence of these exhibits was that “I don’t think he has asked the witness to identify those in such a manner as to make them admissible.” Counsel for respondent then stated that if there is “any question” concerning identification “we can call Mr. Dudley back.” The objection was overruled. On rebuttal Mr. Dudley stated that Exhibit 9 did not correctly portray the condition of the property because “here’s the store building which had already been removed, or in the process” of being removed, and “It looks like a little debris around there.” He further stated that “this was 90 days after the taking” and “I had abandoned the driveway completely.” As to Exhibits 8 and 12 he was asked “whether those correctly portray the appearance of the driveway at the time of condemnation or possession or whether they [the photographs] were [taken] at a later time ?” His answer, without any explanation, was, “No, this isn’t a proper identification.” There was no reqüest that the court withdraw Exhibits 8, 9 and 12 from the evidence and instruct the jury to disregard them.

Respondent’s Exhibits 16 and 17 were photographs of nearby property concerning which there was testimony indicating that comparable sales had occurred. When they were first offered in evidence, counsel for appellants objected because “There has been no proper identification,” and that objection was sustained. Exhibit 16 was later admitted without objection. Exhibit 17 was then identified as a photograph of a nearby grocery store and service station which recently had been sold. The sale had previously been referred to in the testimony. The witness stated that while he had never stopped there, he had “known it” for five years, and referring to the photograph he stated that the property “looked about that way” since he had known it. The objection to Exhibit 17, which was overruled, was that it was not “sufficiently identified.”

The general rule concerning the admission in evidence of a photograph is that the party offering it “must show by extrinsic evidence that the photograph is an accurate and faithful representation of the place, person or subject it purports to portray. This authenticity may be established by any witness who is familiar with the scene, object or person portrayed and is competent to speak from personal observation.” State ex rel. State Highway Commission v. Cone, Mo., 338 S.W.2d 22, 27. “If a photograph correctly shows the situation and surroundings as far as it purports to show them, it should not be excluded because it does not show all the detailed facts and surroundings.” Brock v. Gulf, Mobile and Ohio Railroad Company, Mo., 270 S.W.2d 827. In addition, the fact alone that a photograph of a location or an object was taken before or after an event, and before or after changes have occurred, does not make the photograph inadmissible in evidence if the extent of the changes is explained. Brock v. Gulf, Mobile and Ohio Railroad Company, supra. When those changes are explained, and “the photographs reasonably may aid the jury in arriving at an understanding of a fact or facts that have a direct bearing upon the issues,” they are admissible in evidence. Davis v. Illinois Terminal Railroad Company, Mo., 307 S.W.2d 395, 400. These points of differences between what the photograph shows and what is contended to be the actual facts may be made “the basis for cross-examination, thus enabling the jury to give proper weight to the evidence.” Young v. Dunlap, 195 Mo.App. 119, 190 S.W. 1041, 1044, cited with approval in State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, 107.

When we examine the circumstances of the admission in evidence of the various photographs to which complaint is now made in the light of the above rules it is obvious that no prejudicial error occurred. Exhibit 2, an aerial photograph did not show a building used for tire storage, apparently because the building was not there when the photograph was taken, but the photograph accurately portrayed the remainder of appellants’ property. The absence of the one building was explained to the jury. Exhibit 5 was an enlargement of a portion of Exhibit 4 which was admitted without objection. There is no challenge to the accuracy of Exhibit 5 as an enlargement. Exhibits 8, 9, 11 and 12 were identified as being photographs of portions of appellants’ property. Appellants could explain any differences from what they contended were the actual facts, and they attempted to do so as to three of them. However, that did not destroy their admissibility, but presented an issue to the jury to determine what weight, if any, it would give to the photographs. No objection was made to Exhibit 16, and none can now be made. The identification of Exhibit 17 was sketchy, but it pertained to a collateral matter, and there has been no demonstration of prejudice even if the identification be considered insufficient, and we do not so consider it. Finally, “the admissibility of such evidence [photographs] is largely within the discretion of the trial court, and, unless that discretion is abused, the ruling will not be disturbed on appeal.” Brock v. Gulf, Mobile and Ohio Railroad Company, supra, 270 S.W.2d at p. 833. While the identification of the photographs in some instances could easily have been more complete, there was no abuse of discretion on the part of the trial court in admitting them, and no prejudice resulted.

Appellants’ next point relied on is that the trial court “erred in admitting improper evidence and not granting a new trial” because the “cumulative effect” of argument and statements of respondent’s counsel, and the errors of the trial court in admitting improper evidence “inflamed and prejudiced” the jury against them. Sub-point A refers to “improper and inflammatory remarks and argument” without setting out the remarks and argument. In the argument portion of the brief appellants state that respondent’s counsel was not satisfied merely to introduce photographs taken months after the date of condemnation, but “continually displayed them before the jury and used them in examination of witnesses,” and repeatedly invited the jury “to look at the improperly admitted photographs and utilized them in inflaming the jury in his final argument.” We have previously held that the admission of the photographs was not improper under the circumstances. Therefore, respondent’s counsel was entitled to show them to the jury, to use them in the examination of witnesses, and to refer to them in his oral argument. Appellants’ charge of improper use of the photographs does not prove itself. They make reference to four pages in the transcript containing argument to the jury by respondent’s counsel. We find nothing improper on those pages, and in any event no objection whatever was made.

Appellants next assert that counsel for respondent “referred to appellants’ witnesses as ‘Jaytnrds’ and made derogatory remarks and references to the fact that defendants were from Callaway County, and at one point shouted ‘The Kingdom of Cal-laway is here boys, they’re here in force,’ in an effort to arouse the passions of the jury against the defendants and their witnesses.” The compelling and immediate answer to this complaint is that no obj ection whatever was made to the trial court at the time of the occurrence. However, we have read all of the argument, and when read in context we doubt that the portions complained of are subject to the charges made even though counsel did use the word “Jaybirds” and make the statement pertaining to Callaway County. Certainly, the argument was not of the nature to call for corrective action by the trial court without an objection being made, see Critcher v. Rudy Fick, Inc., Mo., 315 S.W.2d 421, 427, and the incidents did not constitute plain error affecting substantial rights within the meaning of Civil Rule 79.04, V.A.M.R.

Subpoint B refers to “improper remarks and interrogation during trial” without setting out any specific incident. In fact, the incidents are not set out in the argument, but only page references are given. We have read the pages referred to, and such other pages as are necessary to gain the complete picture. In three of the instances the objection was sustained, and in one of those we are of the opinion that the remark objected to was invited. The other two objections were to counsel “yelling” at the witness and “arguing” with him. One objection was specifically overruled and the other was overruled by implication. Whether “yelling” at the witness occurred cannot be determined from the record, but the trial judge was there and witnessed the incident, and apparently he was not impressed by the objection as made. It is questionable that it can be said that objectionable argument with the witness occurred. In each case we gather the impression of a reluctant or evasive witness. In any event, complaints as to these matters were not specifically mentioned in the motion for new trial, and even if they were they are matters which lie within the discretion of the trial court, and there is no showing of an abuse of discretion.

Subpoint C is that the court “erroneously allowed the admission of evidence of the cost of other properties sold during depression years to come before the jury.” The testimony referred to is nowhere set out in the point or even in argument and there is no page reference where it may be found. The incident to which reference is intended occurred during the cross-examination of Homer Owen, an expert witness of appellants on the issue of damages. He testified that he had previously purchased six houses, and he volunteered the information that “some of them was bought back there in the depression.” There was no contention that these properties were comparable to that of appellants or that these sales were comparable to that of appellants or that these sales were comparable sales. The matter was gone into in reference to the qualifications and experience of the witness, and no objection was made on the basis of the contention now advanced on this appeal.

Subpoint D refers to “actions of the attorney for [respondent] in attempting to inject evidence concerning the assessed value of appellants’ property.” No reference to this incident appears in the motion for new trial. On cross-examination counsel for respondent asked Mr. Dudley if he had ever made “any representations” as to the value of his property. The witness stated that he had “no knowledge of that.” He then was asked if he had expressed an opinion of value “for the purpose of obtaining credit,” and the answer was, “I just don’t know.” He was then asked if he had ever made “any representation to the tax assessor as to your opinion of its value.” An objection to this was sustained, but counsel was then permitted to ask if he had ever appeared “before the board of equalization or the tax assessor, any such agency, and make representation or argument as to the value of your property.” The answer was, “I did not.” The valuation of appellants’ property for tax purposes was not asked for and was not disclosed. Therefore, the cases cited by appellants, Kansas City & Gulf Ry. Co. v. Haake, 331 Mo. 429, 53 S.W.2d 891, 84 A.L.R. 1477; and St. Louis Housing Authority v. Gordon, Mo. App., 382 S.W.2d 451 are not in point. Respondent asserts that it was entitled to determine whether or not Mr. Dudley had made any declarations against interest. We do not rule whether the questions were or were not proper for this purpose. The matter was not preserved for appellate review in the motion for new trial, and assuming an impropriety the circumstances do not bring the incident within the scope of Civil Rule 79.04, V.A.M.R.

Subpoint E is that counsel for the respondent “wrongfully attempted to call a witness to the stand who had not excluded himself from the courtroom during trial when the court had excluded all witnesses.” The record shows that after the testimony of three witnesses counsel for respondent stated to the court that he had “planned to rest, but because of one fact that was brought up, I want to call Mr. Huffman for just two brief questions.” Counsel for appellants objected because “The witnesses have all been excluded, in this case and he’s been here during all the testimony in this case.” The transcript does not show that the witnesses were excluded, but apparently it is agreed that they were. However, the trial court sustained the objection and Mr. Huffman did not testify.

We have set out in detail the various matters about which appellants complain, and in doing so we have not adhered strictly to our rules pertaining to the preservation of matters for appellate review and to the presentation of points in briefs. See Domi-jan v. Harp, Mo., 340 S.W.2d 728. From what we have set out it is apparent that no individual item of complaint, nor the accumulation of all matters complained of, constitute prejudicial error requiring or justifying a new trial. This was a vigorously tried case with numerous objections and comments by counsel for both sides. Our impression from reading the record is that the trial court conducted the trial in a commendable fashion. We find nothing in the above matters complained of which was prejudicial to appellants.

We turn now to the contention that the verdict is inadequate. Appellants assert that it “did not compensate [them] for all of the property taken and was inadequate,” and they should have a new trial because the “verdict of $12,125 * * * was grossly inadequate and the trial court erred in not granting a new trial for that reason.”

There is no occasion to set out in detail all the evidence concerning damages, which was the only issue in the case, and which comprises almost 600 pages in the transcript.

Appellants used their land for the operation of a garage business, a salvage business in dismantling junked and wrecked automobiles, a general store, storage facilities for purchased wool and furs, and a residence. Photographs offered by both appellants and respondent were received in evidence, and in addition the jury had the benefit of the testimony of Mr. Dudley concerning the use and condition of the buildings, the business conducted by him on the land, and the condition and possible use of the land remaining after the taking of a portion for the highway. The jury was also given a full description of the buildings, facilities and property that were taken, and the effect on the remainder of the land. It can fairly be said that both parties vigorously and fully presented their evidence as to the physical property, each presenting the features believed to best support their respective positions, and each cross-examined vigorously the witnesses of the other party. Mr. Dudley testified at length concerning the value of the property taken, and as to the damages resulting from the taking. He valued his property before condemnation at $42,000, and stated that the value of the remaining property was $9,500. He explained in detail how he arrived at the above figures, and itemized carefully the various elements of damage, the total of which was $32,500. Appellants called seven persons who qualified as expert witnesses on the issue of value of property, three of whom were the commissioners appointed by the trial court to determine and report the damages sustained by appellants. Each of these witnesses testified what in his opinion was the value of appellants’ property immediately before and immediately after the taking. The highest value before the taking was $37,000, and the lowest was $32,675. The highest value after the taking was $10,000 and the lowest was $5,-000. The highest estimate of appellants’ damages was $30,000 and the lowest was $27,000. Each witness went into considerable detail to explain how he arrived at his opinion as to damages, and each itemized the various elements of damages. All were subjected to vigorous cross-examination.

Respondent called three expert witnesses on the issue of damages. There is no challenge to their qualifications, and there is no objection to the procedure or method used by them in arriving at their opinions of value and damages. Each expressed an opinion of the value of appellants’ property immediately before and after the taking. The values before the taking were $14,600, $12,750, and $18,825. The values after the taking were $7,600, $7,000 and $6,700. The opinions of the damages sustained by appellants were $7,000, $5,750 and $12,125. Each of these witnesses carefully detailed and itemized his estimate of the damages, and each witness was cross-examined at length.

Appellants now argue that this court should reverse the judgment and grant a new trial because they have not received just compensation for the taking of their property. In support of this contention they have outlined in detail in their brief the estimates of the value of the various items of property taken, and the damages to the remaining property, as testified to by their witnesses alone. They cite and rely principally upon State ex rel. State Highway Commission v. Belvidere Development Company, Mo., 315 S.W.2d 781, and in their brief they set up in columns the factual matters of each case to demonstrate that the two cases are comparable. However, in the Belvidere case the trial court granted a new trial on “the specified ground that the verdict was against the weight of the evidence”. In that case it was held that “it was the province of the trial court to determine the relative weight of the conflicting evidence; so it should not be held * * * that the trial court abused its discretionary power in granting a new trial on the stated ground” because there was substantial evidence to sustain the trial court’s view. In the pending case, after determining the relative weight of the conflicting evidence in ruling on the motion for new trial, the trial court refused to grant a new trial. Our task in this circumstance is to determine whether the trial court abused its discretion, and in doing so, as in the Belvidere case, we determine whether there is substantial evidence to sustain the trial court’s view. The rule, as recently stated by this court, is as follows: “ ‘Although “the appellate courts may, in a proper case, interfere where the damages in condemnation are grossly excessive or inadequate”, City of St. Louis v. Buselaki, 336 Mo. 693, 80 S.W.2d 853, 857(9), it has been held repeatedly that an award of damages supported by substantial evidence will not be disturbed. City of St. Louis v. Schopp, 325 Mo. 480, 30 S.W.2d 733, 734(1); Prairie Pipe Line Co. v. Shipp, * * * [305 Mo. 663], 267 S.W. [647] loc. cit. 650(4), and cases there cited. A judgment in a condemnation proceeding should not be disturbed “because of a disparity in the testimony of witnesses or even because of a seeming preponderance of the evidence one way or another,” City of St. Louis v. Gerhart Realty Co., 328 Mo. 103, 40 S.W.2d 661, 665(12); and, it has been held specifically that the opinion of one qualified witness as to the extent of damage “would constitute substantial evidence.” City of St. Louis v. Buselaki * * * [336 Mo. 693], 80 S.W.2d [853] loc. cit. 857(7).’ ” State ex rel. State Highway Commission of Missouri v. Hamel, Mo., 404 S.W.2d 736. See also City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839; State ex rel. State Highway Commission v. Tighe, Mo., 386 S.W.2d 115; State ex rel. State Highway Commission v. Koberna, Mo., 396 S.W.2d 654, 668.

It is true that in this case there was a substantial disparity between the evidence offered by appellants and by respondent on the issue of damages resulting from the taking of a portion of appellants’ property. It may be that if the trial court after determining the relative weight of the conflicting evidence, had concluded that the verdict was against the weight of the evidence and had granted a new trial, we as an appellate court would affirm the exercise of that discretion as was done in the Belvidere case. But, while “The trial court may pass upon the weight of the evidence; we cannot.” State ex rel. State Highway Commission v. Flynn, Mo.App., 263 S.W.2d 854, 856; State ex rel. State Highway Commission v. Anderson, Mo.App., 367 S.W.2d 809, 811. Therefore, “We determine only whether the trial court abused its discretion in overruling [appellants’] motion for new trial on the ground of inadequacy of verdict.” Roush v. Alkire Truck Lines, Inc., Mo., 245 S.W.2d 8, 10. As previously noted, an award of damages in a condemnation case will not be disturbed on appeal when it is supported by substantial evidence, and a properly admitted opinion of a qualified witness as to the extent of damages would constitute substantial evidence. There is no question but that the three expert witnesses who testified for respondent were qualified, and that their testimony was properly admitted. We necessarily must hold that their testimony constituted substantial evidence supporting the verdict. See State ex rel. State Highway Commission v. Hamel, supra; State ex rel. State Highway Commission v. Anderson, supra. It was the prerogative of the jury from all the evidence in the case to determine the just compensation to which appellants were entitled for the taking of a portion of their land, and when the trial court had denied a motion for new trial after the exercise of its authority to determine the relative weight of the conflicting evidence, and the jury’s determination is supported by substantial evidence, as it was in this case, appellate courts may not interfere with that determination.

The judgment is affirmed.

BARRETT, C., concurs.

PRITCHARD, C., not sitting.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Herbert SLAY, Appellant.
    No. 51671.
    Supreme Court of Missouri, Division No. 2.
    Oct. 10, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Stanley D. Rostov, Special Asst. Atty. Gen., Kansas City, for respondent.
    John D. Hasler, Robert J. O’Hanlon, St. Louis, for appellant.
   EAGER, Presiding Judge.

Defendant was found guilty by a jury of tampering with a motor vehicle by removing the front bumper and hood without permission of the owner. Section 560.175, RSMo 1959, V.A.M.S. By an information substi-, tuted for the original indictment he was also charged with a prior conviction in the State of Mississippi for having received stolen property, and with imprisonment therefor. The trial court found from evidence offered that defendant had been so convicted and imprisoned, and it assessed his punishment at a term of five years. He was so sentenced after a timely motion for new trial was overruled.

Some of the points raised involve the evidence to such an extent that we are required to make a rather detailed recital. From the State’s evidence the following facts reasonably appeared. One John Nicoll of Elm-hurst, Illinois, owned a 1964 white Chrysler hardtop, purchased new in July, 1964. About 9:00 p. m. on Friday, August 7, 1964, he parked it in the parking area of the Diplomat Motel on Kingshighway in the City of St. Louis. Early the next afternoon, Saturday, he found that it had been stolen and notified the police. It bore an Illinois State license plate and an Elmhurst city sticker No. 1018. When it was redelivered to him in Illinois several days later, the front bumper was on the back seat, the hood was loose, the left front fender was loose and certain other appurtenances, including the license plate, were gone.

At 12:05 a. m. on August 10, 1964, two uniformed officers of the St. Louis Police Department drove through the alley which passed at the rear of 3967 Evans Street; in a garage open to the alley at that location they saw one car, which one of them described as a Nash; at 1:48 a. m. they passed that garage again and saw a 1964 white hardtop Chrysler standing beside the other car with its hood and humper removed, tools on the floor around the front of the Chrysler, and a lighted flashlight on the floor; the hood and bumper were in the garage. They saw no one in the garage at that time. The officers parked their car down the alley and took up positions from which they could watch the garage. In about fifteen minutes defendant walked down the alley to the garage, entered it, walked to the side of the Chrysler, picked up a tool and began to work on a front fender or, as one stated, “began to disassemble” the fender; at the time he was “slightly up under the fender apparently dismounting the bolt.” One officer testified that he heard a “ratchet” sound, and the other that he heard a “clanking of metal.” There was no light in the garage except the flashlight and such light as came in from the lights in the alley. The officers entered and placed defendant under arrest. The Elm-hurst sticker was on the car, but it carried a Missouri State license plate No. MS 3292. The Police Bureau of Identification was called and the hood and bumper were examined for fingerprints; various photographs were taken. An expert from the Police Identification Bureau testified that two fingerprints lifted from the hood of the Chrysler were those of the defendant. The car was towed to a lot used by the police for storage.

Defendant, 52 years of age, had operated one or more automobile salvage yards in St. Louis for about 20 years; one of these was close to the above address. He bought and sold parts of cars and also cars. He testified in his own defense. In substance, his testimony was: that about six or seven days prior to his arrest he had employed one William Wright as a night watchman for his salvage yard; that Wright said he was a distant relative and wanted to borrow some money on account of an accident; that he let Wright live in an apartment at 3967 Evans which he had previously rented for his daughter and her husband (who had then gone back to Milwaukee); that on the night in question, possibly about 11:30 or 12:00, he went to his “office” for his keys, expecting to find Wright there; when he did not find him, he went over to the Evans address where Wright was supposed to be living; he did so by entering the alley at the rear; that he saw the flashlight burning in the garage, called for Wright and got no answer, saw the two cars, and saw the bumper and hood lying in the other car which he said was his; that he took the hood out and set it up against the wall, looked around, and went to the front of the house where he knocked on the door, still trying to find Wright. According to his testimony, it was there that he was arrested; he admitted having picked up a tool while in the garage, stated that the tools were his and that his employees had access to them, and that they used the tools in the salvage yard. He denied making various statements to the officers concerning the Chrysler, denied stealing or tampering with it and, in essence, denied all knowledge of the circumstances until he came on the scene as related. He further testified: that Wright came and talked with him briefly while he was at the police station; that he had bought a 1957 DeSoto from one Jones with the MS 3292 Missouri license plate on it, but he stated that he had not used the plate, and merely let the car stand on the street until Jones finally got a ticket on it; that when he got out on bond he went back to 3967 Evans, broke the lock on the door, and found two shirts and a pair of trousers which belonged to Wright; that he also found a wallet on the floor of the garage near where the right front wheel of the Chrysler had been; that this wallet belonged to Wright and had some of his cards in it; that he had not located Wright, and that some of his money and a check were missing from his cash register, for which he blamed Wright.

In rebuttal the prior owner of the 1957 DeSoto, Percy Jones, testified that he sold and delivered the car to defendant with the Missouri license plate on it, that he later called defendant and asked him to destroy it, that he subsequently got a parking ticket on that car which he took to the defendant, and that the latter again agreed to destroy the plate and to pay the ticket. The police officers, recalled in rebuttal, testified that they saw defendant at the fender of the Chrysler and arrested him there, that they never saw him at the door of the house, that when they questioned him he stated that an “unknown white male” (defendant being colored) had brought the car to him telling him that if he dismantled certain parts he could have the rest of it, and that he asked the man no questions. The officers also testified that they saw no wallet in the garage, although Officer Searcy made an inspection with a light at the time of the arrest, and again made an inspection after the car was taken out.

Defendant was represented at the trial by privately employed counsel; after the appeal was taken other counsel stated in correspondence that he had been employed. No brief has been filed on défendant’s behalf. There is no indication in our record of indigency, no order was made permitting this appeal in forma pauperis, and defendant is on bond pending appeal. The recent decision in Bosler v. Swenson (CA 8), 363 F.2d 154 (July 14, 1966) is, therefore, inapplicable and we proceed to consider on the merits the assignments of the motion for new trial in accordance with our past practice.

We shall not consider those assignments in the order in which they appear; some will not require substantial consideration. The assignment that the evidence was insufficient and that a verdict of not guilty should have been directed is denied, without discussion. It clearly appears from our statement of facts that the jury was properly permitted to draw an inference of guilt from the evidence.

The defendant offered and the court refused an alibi instruction. It appears to be sufficient in form and the State, in its brief, raises no question as to its sufficiency. Counsel seek to sustain the ruling on the ground that no testimony was produced which would support an alibi defense, except perhaps the testimony showing that defendant was arrested in front of the house instead of in the garage, and they state that “The testimony of the defendant places him at the scene at the approximate time of the crime.” However, the State further says: “And the defendant did testify as to his whereabouts prior to his going to the garage and prior to his arrest. His testimony concerning his search could have put him elsewhere while the hood and fender were removed from the car. * * * the defendant’s testimony would put him elsewhere at the time the hood and the bumper were removed from the motor vehicle.” While the defendant’s testimony is somewhat vague as to his actual locations at specific times, there is no doubt that his testimony did put him elsewhere from approximately twelve o’clock (midnight) until the moment when he was seen to enter the garage from the alley, which is fixed at approximately 2:05 a. m. It was during this time that the hood and bumper of the Chrysler were presumably removed; such was the State’s theory. The car was not there at 12:05. The information charged that defendant tampered with the car “by removing the front bumper and hood,” and the main instruction of the State specifically submitted that hypothesis. Defendant testified that he was not there when that was done. The direct evidence of his tampering with a fender did not meet the requirements of the information and the instruction. Defendant was not charged with, — nor did the court submit, — any theory that he acted jointly with others, in which event his personal presence might conceivably be unnecessary. Defendant’s requested instruction on alibi should have been given and the judgment will be reversed for that reason. See, generally: State v. Bobbitt, 228 Mo. 252, 128 S.W. 953; State v. Brown, 247 Mo. 715, 153 S.W. 1027; State v. Washington, Mo., 364 S.W.2d 572; State v. Pope, 338 Mo. 919, 92 S.W.2d 904; State v. Bounds, Mo., 305 S.W.2d 487, loc. cit. 491.

The contention is also made that the court should have given an instruction “on the lesser offense of climbing in and upon a motor vehicle” under § 560.175(2). The comparable wording of the statute is “upon or into.” It will suffice to say that there was no evidence to support such a submission and it was unnecessary to so instruct. State v. Burns, Mo., 328 S.W.2d 711; State v. Washington, Mo., 357 S.W.2d 92. In this case a conviction of the crime of tampering or an acquittal was required. State v. Murray, Mo., 280 S.W.2d 809.

Complaint was also made of the failure of the court to give a proffered instruction on circumstantial evidence, for the stated reason that the State relied substantially on circumstantial evidence. Such a point is available if and when the State relies entirely upon circumstantial evidence, and the case is so submitted. The giving of such an instruction is not mandatory where there is also direct evidence. State v. Loston, Mo., 234 S.W.2d 535; State v. Butler, Mo., 353 S.W.2d 698; State v. Cheatham, Mo., 340 S.W.2d 16; State v. Washington, Mo., 364 S.W.2d 572. In view of the insufficiency of this assignment, we shall not determine here whether there was direct evidence of the crime. Upon retrial, the court should consider that question in ruling upon the instructions. We do call attention to the fact that the eyewitness testimony here concerned acts of the defendant which occurred after the bumper and hood were removed. The court may also consider the form of the instruction if one is hereafter proffered, and if the evidence requires that one be given.

Error is claimed in the court’s rulings permitting a rather lengthy cross-examination of the defendant concerning the license plate found on the Chrysler and the supposed or possible misuse thereof by the defendant; also, in permitting rebuttal testimony from Percy Jones concerning that plate. The objections were that the evidence was irrelevant, that it tended to prove the commission of an independent crime, and that it concerned a collateral matter. Presumably the objection concerning “another crime” referred to a misuse of the license plate of another person. All obj ections, as well as a motion for a mistrial, were overruled. We have related the substance of the evidence which was so received. We consider the point here only because it will presumably arise at another trial. While perhaps some of the questioning was conducted in unnecessary detail, we rule that the subject matter was relevant and admissible. There are well-recognized exceptions to the rule prohibiting the proof of other and independent crimes. State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307; State v. Holmes, Mo., 389 S.W.2d 30, 33; State v. Ballard, Mo., 394 S.W.2d 336, 340-341; State v. Anderson, Banc, Mo., 384 S.W.2d 591. Such evidence is admissible when it has a legitimate tendency to establish the defendant’s guilt of the charge for which he is on trial. Here the license plate found on the Chrysler at the time of defendant’s arrest was shown to have been last legally used on an old car which was sold to the defendant and of which he had complete control; it next appeared on the stolen car when defendant was tampering with a fender. The essential facts concerning the plate were admissible as tending to prove his guilt.

The defendant should not have been cross-examined concerning the time which he served in the penitentiary in Mississippi on his prior conviction. He had admitted the conviction, and the time served was not a material element going to his credibility. We do not find it necessary to rule whether this was prejudicial. It should not occur again. We find no error in the admission of the rebuttal testimony of the police officers, objection being made that such testimony was merely cumulative and not proper rebuttal.

As a final point we mention the assignment of error made concerning the State’s opening and closing arguments to the jury, specifically that defendant’s prior conviction was argued for the purpose of establishing guilt. We have concluded that the arguments, taken in their full context, should be construed as going merely to the question of credibility, but counsel approached the borderline of impropriety more closely than necessary or desirable. We take this opportunity of stating, as applicable to this case and all others, that, where prior convictions have been presented to a jury for the sole legitimate purpose of affecting a defendant’s credibility, the final arguments of the State should be carefully confined to that purpose and subject. See State v. Mobley, Mo., 369 S.W.2d 576, 579-580; State v. Cook, Mo., 282 S.W.2d 533; State v. Jones, Mo., 221 S.W.2d 137.

The judgment is reversed and the cause is remanded to the trial court for such further proceedings as appear proper.

All of the Judges concur.

      . At certain points in the evidence reference is made to “plates” in the plural. We shall refer to “plate.”


text:
    STATE of Missouri, Respondent, v. Floyd Andrew Bedford GRAY, Appellant.
    No. 51210.
    Supreme Court of Missouri, Division No. 1.
    Oct. 10, 1966.

      Norman H. Anderson, Atty. Gen., Richard C. Ashby, Asst. Atty. Gen., Jefferson City, for respondent.
   HIGGINS, Commissioner.

On December 15, 1961, appellant pleaded guilty to a charge of burglary in the second degree with seven prior convictions and, under Section 556.280 V.A.M.S., was sentenced by the court to five years’ imprisonment. He proceeded under Criminal Rule 27.26, V.A.M.R. to vacate that judgment and sentence and has appealed from the order denying his motion without a hearing.

Respondent shows that defendant has been duly paroled from the penitentiary and moves to dismiss this appeal contending that by virtue of his parole, appellant is no longer “[a] prisoner in custody under sentence” as required by Criminal Rule 27.26 of one who would proceed under the rule. Respondent relies on State v. Brookshire, Mo., 377 S.W.2d 291, holding that an unconditional commutation of sentence executed by the governor rendered moot all questions presented on appeal from a judgment denying relief on a motion to vacate under Criminal Rule 27.26, requiring dismissal of the appeal. The rationale is that one who has been unconditionally released from the sentence he attacks “has already received all of the relief afforded him by reason of Rule 27.26.” 377 S.W.2d l. c. 292[2].

It is a different situation, however, when the appellant is paroled during his appeal from an order denying his motion to vacate. Section 549.261 [3] V.A.M.S. provides: “ * * * Every prisoner while on parole shall remain in the legal custody of the institution from which he was released but shall be subject to the orders of the board.” And the order of parole in addition to imposing conditions and limitations upon appellant’s freedom, directed that the parolee “shall remain in the custody of the Missouri State Department of Corrections, but shall be amenable to the orders of the Board of Probation and Parole until date of expiration, or until returned to the Missouri State Department of Corrections * * In State v. Baker, 355 Mo. 1048, 199 S.W.2d 393, a prisoner who escaped while taking a walk on the prison farm with permission of the guard was in “custody” within the statute defining escape from prison. “Custody” was said to refer “not only to the actual corporeal and forcible detention of a prisoner, but also to measures whereby one person exercises any control over the person of another which confines such other person within certain limits.” 199 S.W.2d l. c. 396[7]. And for purposes of habeas corpus, “any restraint which precludes freedom of action is sufficient, and actual confinement in jail is not necessary.” Hyde v. Nelson, 287 Mo. 130, 229 S.W. 200, 202[2, 3], 14 A.L.R. 339.

Criminal Rule 27.26 is substantially the same as the federal statute, 28 U.S.C.A. § 2255, State v. Thompson, Mo., 324 S.W.2d 133, 135[1]. Under the federal rule the right to attack a sentence is available when the movant is “a prisoner in custody under [the] sentence,” and “a convict, paroled under Chapter 311 of Title 18 U.S.C., is ‘in legal custody/ because § 4203 expressly so declares; and on that account it is conceivable that Bradford might have been in position to review his conviction by habeas corpus or § 2255, if he had been paroled.” United States v. Bradford, 2 Cir., 194 F.2d 197, 200[4], That case also said that 28 U.S.C.A. § 2255 “should be read as coextensive in substance with the writ (of habeas corpus), and as confined to amending the procedure; and it follows that in it the word, ‘custody/ has the same meaning as in habeas corpus,” 194 F.2d l. c. 200[3], Bradford was denied relief under both provisions because he had served his sentence and therefore was not in “custody” within the meaning of either provision. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285, was a federal habeas corpus proceeding where the petitioner was convicted in a Virginia state court and confined in the penitentiary. He urged an invalid conviction as his ground for release and relief. The petitioner was paroled while the matter was pending under conditions similar to those governing appellant, and the Court of Appeals dismissed the case as moot. The Supreme Court reversed, holding that the parolee was in custody and entitled to be heard: “While petitioner’s parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in ‘custody’ of the members of the Virginia Parole Board within the meaning of the habeas corpus statute * * 371 U.S. l. c. 243, 83 S.Ct. l. c. 377. Under these authorities appellant is clearly “a prisoner in custody under sentence” for the purpose of invoking Criminal Rule 27.26, and respondent’s motion to dismiss is overruled.

Respondent has also moved to dismiss this appeal on the ground that appellant’s notice of appeal was not timely filed. The record affirmatively shows, however, that the notice of appeal was filed not later than ten days after the judgment or order appealed from became final, Civil Rule 82.04, V.A.M.R., and that motion is also overruled.

Defendant pleaded guilty “as charged” in an information filed December 8, 1961, which charged Floyd Andrew Bedford Gray with seven prior felony convictions and “That thereafter the aforesaid, Floyd Andrew Bedford Gray and Edward Nelson, on November 22, 1961, at the City of St. Louis aforesaid, into a certain school or building of Eugene Field School, situated at No. 4466 Olive Street, there situate and being, in which divers goods, wares, merchandise or other valuable things were then and there kept and deposited, feloniously and burglariously, forcibly did break and enter, with felonious intent then and there, and thereby feloniously and burglariously to steal, take and carry away the goods, wares, merchandise or other valuable things, or personal property, in the said school or building, then and there kept and deposited; contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.”

In his motion to vacate appellant admits, as did his plea of guilty, that he entered the school building and that there were divers goods, wares, merchandise and other valuable things kept and deposited there. The motion also acknowledges and the record shows that appellant had appointed counsel and that he was represented by the public defender at the time he entered his guilty plea. Even so, appellant states that “not one item was moved out of place when the police arrived and placed the defendant and Nelson under arrest. The purpose for entering the building was not established as charged * * *. For this cause the defendant feels the most the charge could have called for was ‘Breaking and Entering,’ a misdemeanor, and not 2nd Degree Burglary as filed * * *, and for which he was advised by his Court-appointed attorney to enter a plea of ‘guilty.’ ” Proceeding from this, appellant argues that he was never charged with the crime of second degree burglary; that he was therefore improperly denied a hearing in which he would have demonstrated that he was denied effective assistance of counsel in that with adequate representation he would have been advised to limit his guilty plea to a misdemeanor charge of breaking and entering rather than to plead guilty to burglary, second degree.

Appellant’s contention must fail because his premise is faulty. He was admittedly represented by counsel and the information to which he was advised to plead guilty sufficiently charged all the necessary elements of burglary in the second degree involving a school building. State v. Stewart, 329 Mo. 265, 44 S.W.2d 100, 102[1]; State v. Barton, Mo., 379 S.W.2d 562, 564[2,3]; State v. Parks, Mo., 331 S.W.2d 547, 549[2, 3], Appellant’s plea admitted all such elements sufficiently charged, State v. Small, 313 Mo. 66, 280 S.W. 1033, 1034[1], State v. Kelley, 206 Mo. 685, 105 S.W. 606, 608 [3], which would include, of course, the charged breaking and entering and felonious intent, and the crime of burglary being then consummated would not be affected even if “not one item was moved out of place.” State v. Bailey, Mo., 383 S.W.2d 731, 734[4],

It is unnecessary to discuss cases cited as authority by appellant because State v. Barton, supra, directly and completely answers the same contention made by appellant:

“All in one count (V.A.M.S. § 560.110) Barton was charged with feloniously breaking into and entering ‘the Arbyrd School’ and stealing $245.50 in cash. In addition to the regular second degree burglary statute, ‘Every person who shall be convicted of breaking and entering any building * * * in which there shall be at the time any * * * goods, wares, merchandise or other valuable thing kept or deposited with the intent to steal * * * shall * * * be adjudged guilty of burglary in the second degree,’ V.A.M.S. § 560.070, there is a misdemeanor statute, ‘Every person who shall wrongfully break into or enter any schoolhouse * * * shall be adjudged guilty of a misdemeanor,’ V.A.M.S. § 560.090, and shall be punished by a jail sentence, or a fine. Since upon its face the information charged that Barton burglarized ‘the Arbyrd School,’ it is his contention that he was guilty of a misdemeanor only, that the felony sentence is void and infringes his constitutional rights. It is only in this regard that Barton claims that he was unfairly deprived of the effective aid of counsel ; that counsel would have known that he was guilty of a misdemeanor only rather than a felony and accordingly would have protected his rights. The difficulty with the appellant’s contention is that he was not charged with the mere misdemeanor of ‘wrongfully’ breaking into a schoolhouse, he was charged with the felony of breaking into a ‘building’ in which ‘other valuable thing(s) (were) kept * * * with intent to steal.’ State v. Stewart, 329 Mo. 265, 44 S.W.2d 100. A ‘building’ is a structure temporarily or permanently occupied or used for the storage of personal property for safekeeping. A ‘schoolhouse’ fits this definition and it fits the designation in the felony burglary statute of ‘any other building.’ Annotation 78 A.L.R.2d 778 ‘What is a “building” or “house” within burglary statutes.’ ” 379 S.W.2d l. c. 564[2,3].

And since appellant’s contention was thus determinable from the face of the motion and the “files and records of the case” before the court, a hearing was not required, Rule 27.26, supra; appellant was entitled to no relief, and the judgment is affirmed. State v. Barton, supra, 379 S.W.2d l. c. 564[4].

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All concur.