text:
    STATE of Missouri, Respondent, v. James Elmer HARRIS, Appellant.
    No. 52326.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1967.
    Norman H. Anderson, Atty. Gen., Moody Mansur, Asst. Atty. Gen., Jefferson City, for respondent.
    Scherck & Healy, Roger L. Scherck, John C. Healy, St. Louis, for appellant.
   EAGER, Judge.

Defendant was charged by amended information on March 4, 1966, with second degree burglary and stealing, and with the conviction of a prior felony, with a parole. The original information had been filed on February 4, 1966, and an attorney appointed on February 10th. The burglary charged was an entry into the residence of one Rose Henry, and the stealing charged was of a “stereo phonograph.” The present appeal arises from a sentence imposed upon the denial of a motion asking leave to withdraw a plea of guilty. No motion for new trial was filed, but the motion to withdraw the plea was filed before judgment and sentence and we shall deal with the case on the merits. In the light of this issue we shall need to recite the record in considerable detail.

On April 6, 1966, defendant appeared with an associate of his appointed attorney who announced that defendant wished to withdraw his plea of not guilty and enter a plea of guilty. Upon inquiry by the Court the Assistant Circuit Attorney stated the supposed facts, substantially as charged in the information, and expressly stated then that the State recommended a sentence of three years on the burglary charge and three years on the stealing, to run concurrently. The Court asked defendant if what the State’s Attorney had said was true and defendant said, “Yes, sir”; he also asked defendant if he was guilty of burglary and stealing and he again said, “Yes, sir.” At the instance of defendant’s counsel, who apparently had not heard everything, both inquiries were repeated and defendant again answered affirmatively. The defendant also stated, by affirmative answers, that he had discussed the matter with his attorney “completely and thoroughly” and that he had authorized his attorney to enter a plea of guilty on both elements of the charge; he affirmed again that he had committed the burglary, that he was satisfied with his attorney’s advice, and stated that he understood “what it means” to plead guilty to second degree burglary; allocution was granted but, upon request of defendant’s counsel, sentence for the burglary was deferred pending a pre-sentence investigation. Upon further questioning by the Court, defendant affirmed his guilt of the offense of stealing, and stated that his attorney had explained fully what it meant to plead guilty to that offense. To that particular question, after his answer of “Yes, sir,” he added, “I guess so.” Sentence was also deferred on the stealing charge, after pleas of guilty had been accepted to both burglary and stealing.

On May 16, 1966, defendant, by counsel filed his motion to “strike” his plea of guilty and to enter a plea of not guilty; as grounds he stated that he was “unaware that the fact that he entered the premises with the consent of the plaintiff * * * ” had any bearing on the questions and might exonerate him, and so kept quiet, and that he had not advised his counsel that he had “done the alleged act with the consent of the prosecuting witness * *

At a hearing set for May 18, 1966, defendant appeared with Mr. Scherck, his appointed attorney, who stated that his associate, Mr. Oberhellmann, had been handling the matter, and that the latter had told him of inconsistent statements made by the defendant. At that point the Court read to defendant and his counsel from a transcript substantially all of the discussion questions and answers which had transpired when the pleas of guilty were made and accepted; the Court further stated, in -the record, that it had on May 11, received a letter from the defendant asking for a parole because of “family problems,” and that it now noted with interest defendant’s present claim of “consent.” Further colloquy ensued, consisting largely of what defendant had supposedly told Mr. Oberhellmann, including the fact that defendant had broken down a door, but claimed that he did so in order to “get back his own property.” In the course of that colloquy Mr. Scherck said: “You don’t break down the door with consent, that’s true,” and the Court noted: “It’s hard to believe,” and further: “Well, he has been, I believe, something less than completely frank with all of us in this matter. I believe he understood exactly what he was doing on the 6th of April. He said he did. He was well represented. If you have anything further that you would like to say, but I wanted you to be aware of the transcript * * The motion was then argued briefly, partially on facts assumed by counsel, and defendant was sworn as a witness; Mr. Scherck explained that he was there because Mr. Oberhellmann was ill. The Court asked defendant if it was satisfactory with him to proceed in the absence of Mr. Oberhellmann, who might know more about his case, and defendant indicated that he preferred to wait for Mr. Ober-hellmann. The hearing was then continued for that reason and at defendant’s request.

On June 1, 1966, the hearing was resumed, with both Mr. Scherck and Mr. Oberhellmann present. Counsel suggested that the State’s attorney had previously indicated orally that defendant could withdraw his plea, but had later stated the contrary. The assistant in question, he being called in, stated for the record that he had merely said that defendant might file such a motion, and that if it was sustained the State would try the case and seek the maximum penalty; that he felt that the plea was voluntary and proper in all respects, and that he had never consented to a setting aside of the plea. Counsel for defendant then stated that the prosecuting witness was present and that she had “been down here three times trying to drop these charges.” He also suggested to the Court, very vaguely, certain supposed constitutional infringements which are not pursued here. The State’s attorney replied that defendant had written to the prosecuting witness asking her to drop the charges. The Court indicated that it would hear any evidence which the defendant chose to offer. These various colloquies, while not given under oath, appear to have received consideration from all concerned.

The defendant did not testify at tne hearing on his motion; we note this because the hearing was not a trial before a jury in which his failure to testify may not be considered, hut it was one before the Court upon a motion on which he had the burden of proof. Mrs. Rose Henry was the only witness produced; it was obviously her house which had been entered, but she gave no details whatever nor was she asked for any. The substance of her testimony was: that her daughter was defendant’s “girl friend,” that she had a baby by him, and that defendant was “like a son of mine. He was welcome to the house at all times.” Objections were sustained to proffered testimony concerning her effort to drop the charges, this on the ground that the State was prosecuting the charge, not the witness. The only evidence given concerning any sort of permission was: “Mrs. Henry, could you then tell the Court — Did you ever give permission to this defendant to come in your home ? Did he have access to your home? A Why, sure, I gave him permission to come in.” To this an objection (made after the answer) was sustained on the ground that the giving of permission “at any time” was not material on the issue of voluntariness of the plea of guilty. She was never asked whether defendant had permission to enter at the time in question, or whether he was ever given permission to break down a door. The witness testified also that she owned a “hi-fi stereo,” stating specifically: “I own it.” In the next answer she said that she gave it to her daughter, and that it was “supposed” to have been “swapped” in the “girl friend and boy friend.” That was all of the testimony produced. It seems obvious that such evidence did not establish any consent to a breaking and entering, nor did it establish in defendant any ownership of the stereo. The motion was taken under advisement and it was overruled on June 10, 1966; at that time defendant was present with his counsel, allocution was granted on each charge, and he was sentenced to concurrent terms of three years on each charge following such a recommendation by the State. The request for probation was denied. After some discussion of defendant’s prior offense and the dates of probation therefor, an allowance was made for defendant’s “jail-time.”

The sole point made here by defendant is that the Court failed “to use the proper judicial procedures” in the acceptance of the plea of guilty in that it failed to “bring to light” a valid and legal defense to the charges, and thus permitted defendant to waive “inadvertently” his right to a trial. More specifically, counsel say: that the Court did not explain the charges to defendant or “inform him of the requirements for guilt,” and that it did not explain the consequences of the plea. In substance, the argument seems to hinge on the failure, or supposed failure, of the Court to bring out affirmatively the now-advanced theory of “consent.” Counsel quote briefly from the proceedings at the hearings which we have already related, but they omit much. They cite our Rule 25.04, V.A.M.R., which requires the Court to determine that a plea of guilty is made “voluntarily with understanding of the nature of the charge.”

The principles involved are rather firmly fixed in our Missouri cases, some of which are cited and discussed in defendant’s brief. In State v. Williams, Banc, Mo., 361 S.W.2d 772, the Court noted that a plea of guilty should he received with caution, and only if it is freely and voluntarily made; and that if the defendant has been misled or has been induced to plead guilty by fraud, mistake, misapprehension, etc., he should be permitted to withdraw the plea. In Williams, there were unusual and exaggerated facts. Defendant, charged with forcible rape, had entered an equivocal plea of guilty through appointed counsel, who had made a considerable investigation but nevertheless stated concurrently to the Court that they were not convinced of defendant’s guilt, and that defendant had told them with regard to his guilt, — “I don’t know,” it being further stated that he had supposedly taken “dope of some sort” previously. Upon accepting the plea the Court promptly sentenced the defendant to death, after merely asking defendant’s counsel if he had “explained to the defendant the possibilities of punishment * * Defendant was asked nothing. Upon a motion to withdraw the plea defendant’s counsel offered to prove: that the prosecutor had for some weeks insisted upon a life sentence upon a plea of guilty; that at a conference of the Court, the prosecutor, and other persons unknown, a few days prior to entry of the plea (but wholly unknown to defendant’s counsel) the Court had stated that upon a plea of guilty it might impose the death sentence; that three days prior to the plea the prosecutor had advised defendant’s counsel, contrary to his prior insistence, that he would withdraw the habitual criminal charge and permit a plea without making any recommendation, and that he did thereafter, pursuant to that suggestion, withdraw the charge of a prior conviction. The Court refused to hear any evidence on the motion to withdraw the plea. This Court held on the appeal that, the plea being equivocal, the Court should have entered a plea of not guilty. Rule 25.04. It further held that the defendant and his counsel might reasonably have been misled by the action of the prosecutor, and that the withdrawal of the plea should have been permitted. In effect, this Court found that they were misled. The facts of that case are wholly unlike ours, and we have no question whatever as to the propriety of that decision.

In State v. Blaylock, Mo., 394 S.W.2d 364, the defendant obviously thought that he had engaged the services of the attorney of his choice, and he had made a substantial deposit on the required fee; the attorney had interviewed him twice. This attorney did not appear at the time of trial (apparently because the balance of the fee was not paid) and defendant, represented then by the Office of the Public Defender, entered a plea of guilty to a charge of first degree murder. The latter attorney, Mr. Noskay, testified in the subsequent proceedings: that he had told defendant that his chosen counsel would no longer represent him, that defendant then made no response, and that defendant accepted his advice to enter a plea of guilty; also, that he explained to defendant the “ramifications” of such a plea and the possible penalties and that he was satisfied that defendant then understood its meaning. At the hearing on defendant’s motion the defendant denied such conversations, generally, and he stated that Mr. Noskay never discussed the facts of the crime with him. At the time of the plea there the Court had asked the State’s attorney for his version of the facts, and thereafter had merely said to the defendant: “You did do this, did you?” to which the defendant answered “Yes.” The plea was accepted and a life sentence imposed. The appeal there was from an order denying a subsequent motion to vacate the sentence. On appeal, the Court noted that only one leading question had been asked of defendant at the time the plea was accepted, with no inquiry of his attorney, and that the facts stated by the State’s attorney did not necessarily compel a finding of guilt of first degree murder. It concluded that, under the circumstances, there should have been an inquiry into the voluntariness and the understanding (by defendant) of the plea. Those facts, also, are substantially different and much more compelling than ours.

In State v. Arnold, Mo., 419 S.W.2d 59, decided October 9, 1967, the Court followed, generally, the decision in Blaylock, supra, and reversed for failure to sustain a similar motion; there the plea of guilty had been accepted despite the fact that the defendant stated at the time that “he didn’t know anything about” the commission of the alleged crime. It was held that there was not a sufficient inquiry concerning the voluntariness of the plea or defendant’s understanding of the consequences of the plea, nor was the range of punishment explained. A reading of the opinion will show that there was substantially no inquiry made of defendant on the questions held to be vital under our decisions, and that, in fact, the plea was equivocal. The Court also held that the mere presence of an attorney at the time of a plea did not relieve the Court of its duty of inquiry.

In State v. Hovis, 353 Mo. 602, 183 S.W.2d 147, it was held that such a motion should have been sustained because defendant was misled, although not intentionally, by his numerous conversations with the prosecutor concerning the probability of a parole. We do not have such a situation here.

The principles involved are well settled by our Rule and our decided cases, and we see no need to discuss the federal cases cited. Counsel for defendant are charging the trial court, in effect, with the failure to develop a supposed defense to a crime. Counsel had been appointed for defendant more than two months before the plea was entered; at the final hearing on the motion (about two months after the plea) defendant did not see fit to testify. The testimony of the mother of his “girl friend” was insufficient to show her "consent” to the breaking of the door and the taking of the stereo, nor did it show any ownership in defendant; moreover, the credibility of that witness, in the light of all the circumstances, was for the trial court. Obviously, defendant did not convince the trial court that the supposed defense was meritorious or that he had any valid defense.

We revert to a brief review of the proceedings at the time of the plea. So far as concerns any claim of failure to explain the range of punishment, we note that the Assistant State’s Attorney stated at the very outset that the State was recommending two sentences of three years each, to run concurrently; thereafter there could have been no doubt in the mind of any defendant that he might receive that sentence, and that is just what defendant eventually received. That point is totally without merit. Going further, the Court (in the presence of the attorney whom defendant said he preferred) called for a statement of the facts; defendant heard these stated in plain language, i. e., “broke into a dwelling house * * * and stole a stereo.” There could hardly have been a clearer explanation of the meaning of these particular charges; and almost anyone knows what “stealing” means. Defendant affirmed to the Court that the facts stated (not the formal information) by the prosecutor were true, in addition to his statement made twice that he was guilty of the offenses of burglary and stealing; he was asked if he had discussed the matter thoroughly and completely with his attorney, if he was satisfied with the attorney’s advice, and if he had authorized the plea. To all of this he replied “Yes, sir.” Defendant further stated that he understood what it meant to plead guilty to burglary, and to stealing. In the light of all this, we do not consider that the words “I guess so,” added after defendant stated affirmatively that he understood what it meant to plead guilty to the offense of stealing, detracted materially from the showing of his full understanding of the whole proceeding. There were no circumstances here to constitute a possible misleading of the defendant, intentional or inadvertent; there were no promises and no possible coercion; there was no discussion of a parole; and, while the presence of an attorney does not exclude the necessity for an inquiry, we think that the Court may reasonably assume, in the absence of evidence to the contrary, that the attorney has explained to a defendant the basic elements of the offense. In our opinion the defendant could not have failed to understand the consequences of his plea. Nor are there any facts to indicate that the plea was involuntary. There was at least a fair inference that the idea of “consent” was an afterthought, coupled with a fruitless effort to have the charges dismissed after they were fairly and legitimately filed.

We hold that the Court acted within its discretionary power in overruling the motion. Defendant was given two hearings with the opportunity to present any and all desired evidence; he was represented by counsel. It was not necessary for the Court to make findings of fact and conclusions of law for this was a motion filed and heard before judgment and sentence, and not a motion to vacate under Rule 27.26 as amended. The facts in this case are somewhat analogous to those in State v. Hodges, Mo., 383 S.W.2d 551, where the Court affirmed the action of the trial court in denying a similar motion. There the inquiries were rather similar to those in the present case, and the defendant also claimed (“belatedly,” as here) that he “had a misconception of the law and the nature of the charge * * There the Court concluded, loe. cit. 554: “Upon this record we are convinced that defendant voluntarily and understandingly entered such plea. Therefore, there was no abuse of discretion by the trial court in denying defendant’s motion.” We have no statute which gives a defendant the right to withdraw a plea of guilty, even before sentence, and the ruling upon such a motion under the present circumstances lies solely within the discretion of the trial court, absent abuse. State v. Kellar, 332 Mo. 62, 55 S.W.2d 969; State v. Skaggs, Mo., 248 S.W.2d 635.

We are convinced here that the plea of guilty was made “voluntarily with understanding of the nature of the charge,” within our Rule 25.04, and that there was no error in the overruling of defendant’s motion to withdraw the plea.

The judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Charles Larry ALLEN, Appellant.
    No. 52440.
    Supreme Court of Missouri, Division No. 1.
    Oct. 9, 1967.
    Motion for Reconsideration and Modification Without Rehearing Denied Nov. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, A. Michael Sullivan, Special Asst. Atty. Gen., Clayton, for respondent.
    Lovell W. George, Clayton, for appellant.
   HOUSER, Commissioner.

Eighteen-year-old Charles Larry Allen, convicted by a jury of second degree burglary and stealing and sentenced to consecutive 3 and 2-year terms in the custody of the department of corrections, has appealed. Represented at the trial and on this appeal by counsel of his own choosing, appellant makes two points: First, that the evidence is not sufficient to sustain a verdict of second degree burglary and stealing; second, that the prosecuting attorney made an inflammatory and prejudicial argument to the jury.

On the night of August 2-3, 1965 a sporting goods store located on Manchester Road in the City of Rockhill was broken into. Guns, rifles and knives valued at $700 were removed therefrom. There are front and rear entrances. The rear entrance consists of combination wood and glass twin or double doors, covered on the outside by screen doors. The screen doors were secured by hooks. The twin doors were secured by two inside bolts, one belt high, the other about six feet up. There was a crack in the glass in the left-hand door (as you face the doors from the outside) caused by the wind slamming the door shut. It had been taped over with Scotch tape. The crack was 18 inches long. Semicircular in shape, it ranged up from the base of the glass pane in a curving line to a point on the side of the door frame where the pane was set in the molding. The section of glass outlined by the crack constituted the right-hand area of the glass pane of the left door. The glass panes were held in place in the doors by a half-inch wooden molding. There was a “molding line” on the long perpendicular side of the somewhat triangular section of the pane of glass.

On the night of August 2 the proprietor of the store checked the doors and put the bolts in place. The next morning he found the back door standing open, some shells and gun cases scattered around and a couple of little pieces of glass on the floor inside the building, and a hole in the back screen door that was not there the night before; a hole “like you’d stick your hand through.” The elongated, semicircular-shaped piece of glass had been removed from the left rear door. It appeared that the entrant had burst through the screen, unlatched it, removed the piece of glass and unbolted the door by reaching through the opening created by the removal of the glass.

The proprietor called the police department. Sergeant Bell, an experienced officer, made an examination of the premises. On the interior he found the disarray above described. He took the empty cardboard boxes and some boxes of shotgun shells to the police station for fingerprints but found nothing legible, “only smudges.” Outside the building he found the displaced section of the left rear door glass, leaning from the ground against the concrete steps which lead from the porch at the rear of the store. Fingerprints on this section of glass were “quite obvious.” The sergeant put transparent tape over them and the section of glass was taken to the Identification Bureau of the St. Louis County Police Department for processing. Two detectives, both experienced in the art of fingerprinting, one of them in charge of the identification bureau, testified with respect to the fingerprints on the section of glass. A fingerprint examination was conducted. Several prints were lifted and put on a white background and photographed. One print which could not be lifted was photographed on the glass. The photographs were enlarged. Appellant lived with his grandmother in the vicinity. There is no evidence that appellant had ever been in the store prior to August 2, 1965. Appellant was taken into custody as a suspect and his fingerprints were taken. His fingerprint card, made available to the identification bureau, was photographed and enlarged. The enlarged photographs from the glass and the enlarged photograph of appellant’s fingerprint card were paired on a comparison chart. One print lifted off the glass was a partial latent fingerprint impression, which the expert testified was made along the edge of the section of glass. The experts found numerous points of identification — abutments, scars, ending ridges, etc. — -on the basis of which they expressed their opinions that the fingerprints on the glass were identical with and belonged to the same person who made the prints on the card. There were 15 points of identification on one pair of prints. There was a line on the glass under one of the prints. This was the “molding line” where the molding held the pane in the frame. A latent fingerprint lifted off the glass was found to compare with the right middle finger on the chart. At one point skin was missing as a result of an opening in the skin which had not grown over. That pattern was in exactly the same spot on the card print. They were identical. Two prints, from the right index and right middle fingers, were found on one side of the glass, and a right thumbprint on the other side. These were compared with appellant’s fingerprints on the card and 12 points of identification were noted. The officers positively testified that the prints on the glass were one and the same — identical with — the prints on the card. The card and charts were offered in evidence.

Appellant took the stand and testified that he was walking through the area behind the sporting goods shop on the night in question; that he had left his sister’s house in St. Louis sometime between 10 and 11 p. m. and caught a bus to the Maplewood loop, from whence he walked home; that when he passed the corner of the store building his attention was attracted by the fact that the door was open or ajar, and it seemed like there was a little light flashing in the front of the store. The door was not wholly open but was “cracked.” Curious, he mounted the hack porch steps, put his hands on the doors, “leaned in,” looked inside and saw only a flash of the light coming from the front. He testified that he did not go inside the store. He “figured the man might be in there or something wrong,” so he turned around, went down the steps, went home and went to bed. He said that in leaning over and “peeking in” he held onto one door with his left hand and rested his extended right arm and hand on the other (closed) door; that he saw no open place where glass had been broken, but was not looking for glass; that he had to touch the glass since he put his hand on the door; that if he hit the glass with his left thumb and' fingers the prints should be on it, and his right palm print should be on the glass part of the other door. He could not say whether there was glass in either door because he “didn’t exactly examine it.”

It was the state’s theory that the only way one could get his fingerprints on the part of the glass covered by the molding would be to “wiggle” the glass out of the frame and then touch it after the glass was removed and out from behind the molding, and that the position of the prints on the glass proves beyond doubt that appellant took the glass out and made the prints thereafter. Appellant argues that this is unlikely; that the state’s evidence is puzzling and at most creates a suspicion that appellant was implicated, or a probability of guilt, and that circumstantial evidence must go beyond mere suspicion and conjecture. Appellant claims there is no chain of evidence here, but merely a single link, a single circumstance.

Where the evidence of defendant’s agency in connection with the crime charged is entirely circumstantial, “the facts and circumstances relied upon by the state to establish guilt must not only be consistent with each other and with the hypothesis of defendant’s guilt, but they must also be inconsistent and irreconcilable with his innocence and must point so clearly and satisfactorily to his guilt as to exclude every reasonable hypothesis of innocence.” State v. Walker, Mo.Sup., 365 S.W.2d 597, 601 [5]; State v. Stoner, Mo.Sup., 395 S.W.2d 192. Ordinarily evidence of a single, isolated fact, however incriminating, is not sufficient to support a conviction. State v. Schrum, 347 Mo. 1060, 152 S.W.2d 17; 52 C.J.S. Larceny § 137 c. (1). Furthermore, the mere presence of the accused at the scene of a crime and an opportunity on his part to have committed the offense is not sufficient circumstantial evidence to justify conviction. State v. Castaldi, Mo.Sup., 386 S.W.2d 392; State v. Whitaker, Mo.Sup., 275 S.W.2d 322 [4], The mere fact that defendant was at the rear of the building at or near the time the building was burglarized is a circumstance entirely consistent with his innocence, and is insufficient to support a conviction in the absence of proof of flight or “other corroborating circumstances.” State v. Rutledge, 304 Mo. 32, 262 S.W. 718. Proof, however, that fingerprints found in the place where a crime is committed, “under such circumstances that they could only have been impressed at the time the crime was committed, correspond to those of the accused, may be sufficient proof of identity to sustain a conviction.” Anno: Evidence —Finger, Palm, or Footprint, 28 A.L.R.2d 1115, §§ 28, 29.

The evidence in this case shows more than mere presence of defendant at the scene of the crime and opportunity to commit the crime. It connects this defendant with the removal of the glass from the door through which the burglar entered. There is the admitted fact that defendant was at the rear door of the shop that night, interested in what was within the building. The glass with the fingerprints thereon, and the enlarged prints from the glass and from defendant’s fingerprint card, with the aid of the expert testimony, provided the jury with proof from which it could be found beyond a reasonable doubt that defendant removed the glass from the door. The fingerprints and thumbprint were found at the edge of the piece of glass which had been removed from the door, at and on a portion of the glass which had been covered by the molding, so positioned that it would have been physically impossible to have left the prints there while the glass yet remained in position as a part of the door. The evidence dispels the possibility that defendant left these prints on the glass after the commission of the burglary by another. There was nothing to indicate that these particular fingerprints, at that particular place on the glass, were placed there innocently. There was no attempt to show that the fingerprints were not those of the defendant. That the person who removed the glass could have gained entrance to the building by reaching through the hole and unbolting the door and that whoever entered the building took or participated in the taking of the property that was missing the next morning, follows so reasonably and surely as to exclude any other reasonable hypothesis. The jury was justified in concluding that defendant was the guilty party and that he committed the crimes beyond a reasonable doubt.

In an almost identical situation the Court of Criminal Appeals of Texas said: “The presence of appellant’s finger print on the portion of the glass covered by the molding is inconsistent with his innocence. It could not have been placed there while the pane was in the door and the molding in place. The evidence was sufficient to authorize the jury’s finding. This court has no right to disturb their verdict.” In his motion for rehearing appellant contended that the evidence of identity of the fingerprint was not sufficient to sustain the verdict. The court answered: “In determining this question we think the first requisite is to show a reasonable doubt that the finger print found on the glass was placed there by the burglar at the time of the burglary, excluding the hypothesis that it might have been innocently imprinted on the glass at a time prior to or subsequent to the burglary. On this point we think the evidence leaves no room for doubt. The glass was held in the door by a molding. Along the glass at the edge of the molding was a showing of paint. The finger print found was on the glass at a point which had been covered by the the molding, hence impossible to find its way there until the molding was removed. Therefore it seems conclusive that when the glass was removed in order to effect an entrance to the building the burglar at that time left his finger print on the glass after removing the molding. The evidence excludes the idea that appellant ever handled the glass subsequent to the burglary.” Grice v. State, 142 Tex.Cr.R. 4, 151 S.W.2d 211, 221.

Prejudicial closing argument? The assistant prosecuting attorney said: “ * * * This wasn’t a prank. He didn’t go in and steal some tennis balls or baseball bats. He went in there and took $700 worth of guns and rifles out of that store. Those shotguns and rifles haven’t been returned, they haven’t been found. And you can bet your life they are not going to be used for hunting or for any legal purposes. Those are shotguns now. * * * ” At this point counsel for defendant made an objection and the court said “There’s been an objection; let’s attempt to stay within the record.” No other or further action was requested by the defendant. It is urged that the state thereby implied that the guns were stolen by defendant for the specific purpose of perpetrating violence and, coming as it did when the Watts riot was still fresh in the public mind, was so prejudicial and inflammatory as to deprive defendant of the full and fair consideration of the evidence. This interpretation would require us to reach and stretch the argument beyond the realities of the situation. The plain truth is that the assistant prosecuting attorney did not directly or indirectly refer to Watts, rioting or violence. Defendant was a negro but no reference was made to race. We find nothing in the argument from which the reasonable inference could be drawn that reference was being made to these tender subjects. The “bet your life” argument was irrelevant, nothing on this subj ect having been put in evidence. The court properly noted the objection and admonished counsel to stay within the record. No request to strike or to instruct the jury to disregard was made, and no other or further action was requested. We find nothing to place the court in error in its ruling.

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

The judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

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

All of the Judges concur.


author: ELGIN T. FULLER, Special Judge.

text:
    Donald Lee LUGENA, Appellant, v. Marilyn C. HANNA, Respondent.
    No. 52674.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1967.

      Larry M. Woods, Columbia, Sapp, Woods & Dannov, Columbia, of counsel, for appellant.
    Howard F. Major, W. Hampton Ford, Ronald A. Graves, Columbia, for respondent.
   ELGIN T. FULLER, Special Judge.

This is a suit for damages growing out of an automobile accident in Columbia, Missouri, brought by Donald Lee Lugena, Appellant, against Marilyn C. Hanna, Respondent. The appeal is from an order sustaining defendant’s motion for summary judgment.

The facts as they appear from the pleadings, depositions of plaintiff and defendant, the depositions of witnesses Chiles Richard and Vern L. Nesheim, adjuster for MFA Insurance Company, plaintiff’s response to defendant’s motion for summary judgment and the affidavit of plaintiff, are as follows: On September 3, 1965, a collision occurred between automobiles driven by Donald Lee Lugena and Marilyn C. Hanna. At the time of this collision defendant was traveling north on Ripley Street and plaintiff was westbound on Walnut Street. There is a stop sign at the southeast corner of the intersection of Walnut and Ripley Streets, Walnut being a through street, and traffic on Ripley being required to stop before entering Walnut. The defendant did not stop before entering Walnut Street. She did not see plaintiff’s vehicle before the impact and didn’t recall looking to the east to see if there was an automobile coming toward the west. Later defendant entered a plea of guilty to careless and imprudent driving. Defendant did not recall but did not deny saying to plaintiff after the collision, “It was all my fault and I will take all responsibility for it.” On the other hand, plaintiff, Lugena, first saw the Hanna automobile when the Hanna car was only two feet from the left side of his automobile. Plaintiff could not say whether he looked to the south on Ripley Street before entering the intersection. He didn’t sound the horn and did not recall applying his brakes. Both cars were traveling 25 or 30 miles per hour. Nothing obstructed the view of either driver.

Lugena carried no personal liability insurance and was, therefore, subject to the provisions of the Safety Responsibility Law (§§ 303.030, 303.060, RSMo 1959, V.A. M.S.), under which he was required to deposit security for the payment of any judgment which might be rendered against him for damages arising out of such accident and recovered in an action at law begun not later than one year after the date of the accident, or suffer suspension of his license unless (§ 303.070(4)) “* * * there shall be filed with the director evidence satisfactory to him that the person who would otherwise be required to file security has been released from liability or been finally adjudicated not to be liable or has executed a duly acknowledged written agreement providing for the payment of an agreed amount in installments, with respect to all claims for injuries or damages resulting from the accident.” See also § 303.140 (3).

After such accident was reported in writing to the Director of Revenue, Lugena was advised by the Director that if he did not obtain a release from Hanna or deposit security of a certain amount, his chauffeur’s license would be suspended. Upon receipt of this rather sad and jolting communication Lugena consulted his attorney. Lugena stated that his attorney gave him a release form. Lugena then went to Marilyn Hanna’s home. He told her that he was a truck driver and earned his living by driving a truck and that his chauffeur’s license was going to be taken away unless she signed the release which he had with him; that he needed the signed release to keep his license. Miss Hanna told Lugena that she would take the release to her insurance company and would do what it told her to do. She talked with the claim adjuster of her company, who told her that it was all right for her to sign the release. The release was signed by defendant Hanna November 2, 1965. She then delivered it to the wife of Lugena, plaintiff Lugena being absent from his home at the time. Lugena paid no money to Hanna for the executed release. The release was on the form provided by the Department of Revenue, designated “Safety Responsibility Law Release.” Omitting certain identifying data, the release is as follows:

“The undersigned hereby certifies that he-she is of the age of 21 years or over and that he-she has released Donald Lee Lugena and Anita L. Lugena from all claims and causes of action of the undersigned arising from the above described accident, and authorizes the Safety Responsibility Unit to accept this certificate as satisfactory evidence of such release from liability as required by the Safety Responsibility Law. (Section 303.070(4) and 303.140(3), L. 1953, H.B. 19)
Date Nov. 2, 1965
Marilyn Hanna
(Signature of person giving release.)
R 6 Columbia, Mo.
(Address of persons giving release.) ”

The release was acknowledged November 2, 1965, before a notary public.

After plaintiff obtained the release from defendant Hanna he then filed his petition against her for personal injuries, medical and hospital expense, lost wages and property damaged for $17,000.00. The petition was filed December 11, 1965. The defendant’s answer, after pleading contributory negligence of plaintiff, pleads the executed release as a bar to plaintiff’s action and pleads that because of the release plaintiff is estopped from maintaining such cause of action. Thereafter, the defendant filed her motion for summary judgment, to which the plaintiff filed his response and affidavit. Defendant’s motion for summary judgment was sustained.

The question presented by this appeal is whether or not, as a matter of law, the plaintiff’s obtaining the release from the defendant constitutes conduct which estops plaintiff from prosecuting the instant action.

Appellant claims error in the trial court’s sustaining the motion for summary judgment. He makes three points:

First, there was no consideration to the defendant for the execution of the release and that defendant did not give up any right of action or change her position to her detriment because she had no cause of action against plaintiff anyway.

Second, the motion for summary judgment should not have been sustained for the reason there was a genuine issue of fact as to whether there was an accord and satisfaction by the execution and delivery of the release because the intention of the parties is a necessary element, and therefore there was a factual question as to the intention of the parties at the time of the release; and

Third, plaintiff is not estopped from prosecution of his cause of action against the defendant because defendant was not misled into signing the release and for the reason that she suffered no injury thereby.

Considering first the question of consideration for the release, it is true that Lugena did not pay any money to Miss Hanna. But in executing and delivering the release to plaintiff the defendant did change her position to her detriment. Plaintiff contends that the depositions show that she could not have made a submissible case as to plaintiff’s contributory negligence or, in the event of a counterclaim, she could not have made a submissible case either as to plaintiff’s primary or humanitarian negligence. A determination of those matters is not necessary. She had a right to assert such a defense or claim until the time she signed the release. It was at least possible for her to have successfully contended that plaintiff should have seen her in time to have sounded a warning and thereby avoided the accident. Consideration may consist of forbearance or some detriment. 76 C.J.S. Release §§ 12, 16, pp. 635, 637. When the plaintiff obtained the release from defendant he placed the defendant in the position of a prizefighter who must fight only by parrying the blows aimed at him, but is not permitted to strike back. Miss Hanna must remain in the outfield at all times, with never a turn at bat or an opportunity to make a score. The best she could possibly hope for would be a scoreless tie. This giving up and forbearance was a benefit to the appellant. The appellant, for his own benefit, sought out the defendant and induced her to sign the safety responsibility release. He knew that if defendant executed the release he, Lugena, would be releasing the defendant. In Lugena’s deposition he was asked what he understood as to the legal effect of Miss Hanna’s giving him a release, and his reply was: “That if she signed the release for me that I would * * that the insurance company would also say that that released them, at the same time.” The conclusion is inescapable that at the time the release was executed the plaintiff was willing to settle the entire matter without reserving the right for him to proceed against the defendant. The plaintiff-appellant did not provide for the reservation of a right to pursue his claim against Miss Hanna. Had he done so his right thereafter to proceed against respondent would be protected. Pierson v. Allen, Mo., 409 S.W.2d 127. In his deposition Lugena was asked, “Well, was it more important to you to have the release executed than to preserve any claim you might have?” To which he answered, “At the time, yes. I had to provide for my family.”

The argument now advanced by plaintiff Lugena as to there being no consideration for the release was also urged in Eberting v. Skinner, Mo.App., 364 S.W.2d 829. That case involved a safety responsibility law release and the sustaining of a motion for summary judgment. The court rejected the plaintiff’s contention that there was no consideration, and at page 834 stated: “But ordinarily the courts are not concerned with the amount or quality of the consideration. 1 Am.Jur.2d, Accord and Satisfaction, § 13, p. 311; Duncan v. Black, Mo.App., 324 S.W.2d 483, and the consideration may consist of forbearance or some detriment suffered. 76 C.J.S. Release §§ 12, 16, pp. 635, 637. There was consideration moving from the releasor to the releasee in that she was giving up her right of action against the releasee; or if it be argued that she had not released Eberting, she at least changed her position to her detriment; for, since he had no liability insurance, it would have been to her advantage to have on deposit security available to pay any judgment which she might obtain. She had the right to institute an action immediately and this very act would have impounded the security until the action was terminated. This giving up and forbearance on her part was a benefit to the appellant.”

We hold in this case that the release was supported by sufficient consideration, and that it is not essential that money be paid for a release.

Appellant’s second point is that there was a genuine issue of fact as to whether there was an accord and satisfaction which depends on the intention of the parties at the time of execution of the release, and that, therefore, there being an issue of fact, it was error to sustain the motion for a summary judgment.

A similar claim was made in Farmer v. Arnold, Mo., 371 S.W.2d 265, which involved a release under the Safety Responsibility Law and the granting of a summary judgment. Plaintiff Farmer appealed asserting, among other reasons, that there was a genuinely controverted issue of fact to be determined and that therefore the remedy of summary judgment was not appropriate. As in the instant case plaintiff claimed that the release was obtained by him for the sole and specific purpose of complying with the safety responsibility law so as to avoid the loss of his driving privileges. He claimed that immediately after the accident he and the driver of the other car entered into an oral agreement “whereby each agreed to pay the other for his damages;” that the actual terms of this agreement was a question of fact for a jury’s determination and made the summary judgment procedure inapplicable. That was a stronger case, for the releasee claimed a separate, oral agreement. This court, in holding that because Farmer instigated the execution of the release he was estopped from prosecuting a suit against Arnold, said at page 269: “ * * * whatever the parties may have thought or intended when the plaintiff Farmer paid Arnold $50 for a release, and regardless of whether the release constituted the entire contract, the release was executed at the instigation of Farmer for his own immediate needs and benefit and he is now estopped after rendering Arnold all but defenseless from prosecuting one side of a tort action arising out of a single transaction.”

Plaintiff Lugena does not claim that a separate oral agreement was made at the time the release was signed. He merely makes the claim that the only reason defendant Hanna signed the release was to allow plaintiff to retain his chauffeur’s license, and that there was no intention to prevent his suing her at a later date. The depositions indicate that that contention is nothing more than a hope on appellant’s part. How could it be said that there was an intention on the part of the parties to reserve the right of plaintiff to prosecute his claim against Hanna when no written reservation of such right was included in the release? Plaintiff never asked the defendant to execute an agreement giving him that right; nor does the record show that plaintiff ever requested the defendant to consider such an agreement. The record shows that defendant signed the release so that plaintiff would not lose his driving license. Her deposition shows the following: “ * * * and I was willing to sign it so he could have his driver’s license.” And in answer to the question, “And was that the only purpose for which you signed it?” she answered, “So he could keep his driver’s license, yes.” There is nothing in those circumstances to show an intention of defendant to authorize a later claim by plaintiff against her.

The release in this case was, for all practical purposes, a general release. While it is true that the intention of the parties to a release, like all contracts, is the ultimate test of such contract, the secret intention of one of the parties, like unilateral mistake in or ignorance of the legal effect of a release or contract is of no consequence. Sosa v. Velvet Dairy Stores, Inc., Mo.App., 407 S.W.2d 615. “Stated otherwise, the intention of the parties as evidenced by the legal import of the language of a valid written contract cannot ordinarily be varied by parol proof of a different intention.” 30 Am.Jur.2d, Evidence, § 1016, p. 149. Nor can its legal effect be contradicted or varied by parol or extrinsic evidence. As stated in 32A C.J.S. Evidence § 852, p. 220: “The legal effect of a written instrument, even though not apparent from the terms of the instrument itself, but left to be implied by law, can no more he contradicted, defeated, modified, varied, explained, or controlled by parol or extrinsic evidence than if such effect had been expressed * *

We find no genuine issue of fact which would make the summary judgment procedure inapplicable.

The last contention of plaintiff that he was not “equitably estopped because defendant was not misled into signing the release and for the reason that she suffered no injury,” is not too clear. Neither the plaintiff nor the defendant was misled. Plaintiff knew that he wanted a signed release to protect his driving privilege. Defendant Hanna knew that Lugena was likely to lose his chauffeur’s license if she did not sign the release. The question of either party being misled as to the actual execution of the release is not involved in this case. What we have heretofore said as to the injury or detriment to defendant Hanna by her execution of the release is sufficient.

The legal effect of a release has been before the appellate courts of this state on several occasions. In England v. Yellow Transit Co., 240 Mo.App. 968, 225 S.W.2d 366, the defendant Yellow Transit Company obtained a release from the plaintiff upon the payment of $500.00. It failed to expressly reserve its right to prosecute its counterclaim against the plaintiff. Although its counterclaim had been filed prior to dismissal of plaintiff’s petition and the execution of the release by the plaintiff, Yellow Transit’s failure to specifically reserve its claim was held to be one of the circumstances estopping it from the right to pursue its claim.

Again, in Eberting v. Skinner, supra, the court, under similar facts to those in the instant case, decided that the releasee was estopped from proceeding with his cause of action against the releasor. Farmer v. Arnold, supra, reaches the same conclusion.

Fortunately, we think, for the reputation of the law for fairness, the authorities in other jurisdictions hold that, under similar circumstances, the releasee’s cause of action is barred and he is estopped from proceeding against the releasor after execution of a release. Heinemann Creameries, Inc. v. Milwaukee Automobile Ins. Co., 270 Wis. 443, 71 N.W.2d 395; Kelleher v. Lozzi, 7 N.J. 17, 80 A.2d 196; Giles v. Smith, 80 Ga.App. 540, 56 S.E.2d 860; and Mensing v. Sturgeon, 250 Iowa, 918, 97 N.W.2d 145, at page 150, wherein the Supreme Court of Iowa stated: “We consider the better rule to be that the making of the original settlement without any express reservation of rights by the settlor constitutes a complete accord and satisfaction of all claims of the immediate parties arising out of the same accident.’ ”

Some of the cases decide the issue presented in this case on the theory of estoppel, estoppel in pais, equitable es-toppel, waiver, accord and satisfaction, or estoppel by misrepresentation. But by whatever name used in the opinions, all are based on the principle that where one of the parties to an accident is charged with liability by the other, and settles the claim or takes a release, he should not thereafter be permitted to bring or pursue his action on the theory that the other party was negligent and therefore liable, since the settlement or the taking of a release may he regarded as an expressed or implied admission of negligence on his part, and that the taking of a release without a reservation of right in the releasee to make a claim against the releasor constitutes an accord and satisfaction of all claims of the parties to the settlement arising out of the same accident, and the releasee is estopped from so doing. Generally a party will not be permitted to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him. In the absence of words in the operative part of a general release which indicate an intention to limit or restrict its effect, it must be concluded that the instrument was contemplated and intended to be a complete settlement of all matters between the parties to the release. That is estoppel in its purest form, for estoppel rests simply on a rule of law which forecloses one from denying his own expressed or implied admission which has in good faith been accepted and acted upon by another. The situation here is very similar to that in those cases where a party seeks to accept the benefits of a contract, but to reject all or a part of its burdens. As said in Eberting v. Skinner, “he cannot now take the shield which she has handed him and use it as a sword against her.”

The judgment is affirmed.

FINCH, P. J., and DONNELLY and EAGER, JJ., concur.


text:
    John W. BAUMLE, Appellant, v. William M. SMITH, Ezra E. Garrett, and Terrance W. Young, Respondents.
    No. 52280.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1967.

      Douglas W. O’Neill, Gordon W. Neilson, St. Louis, for appellant.
    John D. Gallagher, Gallagher & Hack-meyer, Clayton, for respondent, Ezra E. Garrett.
    F. X. Cleary, Donald L. James, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent Terrance W. Young.
    Bernard C. Brinker, Carter, Fitzsimmons & Brinker, Clayton, for respondent, William M. Smith.
   HOUSER, Commissioner.

John W. Baumle, a passenger-guest riding in a Corvair automobile, brought a $50,000 action for damages for personal injuries against his host-driver, Ezra E. Garrett, joining also as parties defendant Terrance W. Young and William M. Smith. Plaintiff alleged that a Falcon automobile driven by Young collided with the Corvair and that subsequently the Corvair was struck by a dump truck driven by Smith. Plaintiff charged each defendant separately with various assignments of negligence. At the close of plaintiff’s case the court sustained a motion for a directed verdict filed by defendant Garrett and at the close of all the evidence caused one of the jurors to sign a verdict finding in favor of defendant Garrett. The cause was submitted to the jury as to the other two defendants and the jury returned a verdict' in their favor. From the judgment entered upon the verdicts, by which plaintiff took nothing and all defendants were discharged, plaintiff has appealed.

The first question is whether plaintiff filed his motion for new trial too late. Respondent Garrett contends that as to him the motion was filed on the sixteenth day after entry of judgment, and therefore appellant has preserved nothing for review as to this defendant under Civil Rule 78.02, V.A.M.R. which provides that: “A motion for a new trial shall be filed not later than IS days after the entry of the judgment. The judgment shall be entered as of the day of the verdict. * * * ”

The trial began on March 21 and continued through March 22 and 23-, Plaintiff rested at the conclusion of the proceedings on March 23. On that date the court stated that he “granted” defendant Garrett’s motion for a directed verdict, wrote “Granted” on the motion and signed his name as judge. The trial continued through March 24 and March 25. The taking of evidence was concluded on March 25. On that date, after the instructions had been prepared and before reading them to the jury, the court announced that defendant Garrett was no longer in the case, and caused one of the jurors to sign a verdict finding in favor of Garrett. On that date, March 25, the jury returned its verdict as to the other two defendants, and on that same day the court rendered judgment for all defendants. Plaintiff filed his motion for new trial on April 8, 1966.

The motion for new trial was filed fourteen days after the. judgment was entered and sixteen days after the court made the ruling granting defendant Garrett’s motion for a directed verdict. The court held this ruling in abeyance pending receipt of the verdict of the jury with respect to the other two defendants. The court did not render any final judgment, or any judgment at all, as to defendant Garrett on March 23. There was only one final judgment from which an appeal could be taken, or to which a motion for new trial could be directed. That was the judgment rendered March 25. The motion for new trial, filed fourteen days after March 25, was filed in time.

Appellant first complains of error in directing a verdict for defendant Garrett, the host-driver, making the point that there was sufficient evidence to make a submissible case of negligence against Garrett. In determining whether plaintiff made a case for the jury as against defendant Garrett we must consider all of the evidence in the light most favorable to plaintiff, taking his evidence as true where not entirely unreasonable or opposed to physical laws, and giving him the benefit of all favorable inferences arising from all the evidence and rejecting unfavorable inferences. A case should not be withdrawn from the jury unless the facts in evidence and the reasonable inferences to be drawn therefrom are so strongly against plaintiff as to leave no room for reasonable minds to differ. DeLay v. Ward, 364 Mo. 431, 262 S.W.2d 628; Hastings v. Coppage, Mo.Sup., 411 S.W.2d 232, 235 [1,2],

It was a clear day. Lindbergh Boulevard in St. Louis County was a 4-lane concrete arterial highway consisting of two northbound and two southbound lanes. Each of the four lanes was approximately 10 feet wide. There was no median strip or divider separating the northbound lanes and the southbound lanes. Only painted stripes separated the two sets of lanes. Traffic was heavy. Plaintiff was riding in the right front seat of Garrett’s southbound Corvair automobile. There were three passengers in the Corvair. The Corvair was traveling at a speed of 40-45 m. p. h. in the “inside” southbound lane, — the lane nearest the center line. Defendant Young, driving a Falcon automobile, entered Lindbergh from a side road from the west, turned right into Lindbergh and proceeded south, traveling behind the Corvair, in the outside southbound (or “curb”) lane, at a speed of from 40-50 m. p. h. Defendant Smith, driving a 15,500 pound empty truck north on Lindbergh at a speed of 35^40 m. p. h., was occupying the “inside” northbound lane, —the lane nearest the center line. At some point of time the Falcon moved from the curb lane to the inside lane and at some point of time the Corvair moved from the inside southbound lane over and across the center line into the inside northbound lane, at approximately a 45° angle. There in the northbound inside lane the left front of the Corvair was struck by the northbound truck driven by defendant Smith.

There was substantial evidence from which these facts could be found: When the Falcon turned left from the curb lane to go into the inside southbound lane in front of the Corvair the electric left turn signals on the Falcon were flashing. Defendant Garrett put on his brakes when the Falcon made its movement to the left, and the Corvair’s speed was thereby reduced, but immediately thereafter the right front bumper of the Corvair collided with the left rear bumper of the Falcon with a slight impact. Thereafter, with its brakes on and with each of its rear wheels making tire marks, the Corvair traveled a distance of 80 feet in the course of which it crossed the center line and went into the inside lane of the northbound lanes. There it came to a stop with the motor stalled, sitting at a 45° angle headed southeast, with its left rear wheel on the center line and its left front wheel extending out more than five feet into the northbound lane. Forty-five feet of skid marks were left on the pavement by the Corvair. When the Corvair came to a stop defendant Garrett saw the oncoming truck, which was then 500 feet south of the Corvair. The northbound truck continued to come toward the Cor-vair, in the same lane, at unabated speed. Defendant Garrett tried to start the motor of the Corvair but failed. Although his horn was working defendant Garrett did not honk his horn to attract the attention of defendant Smith, the driver of the northbound truck. From the time the Corvair came to a stop until the moment of impact between the truck and the Corvair five or six seconds elapsed. The truck could have been stopped, under the existing circumstances, including reaction time, in a distance of 200 to 248 feet.

The foregoing evidence would have authorized the submission to the jury of the issues of negligence on the part of the defendant Garrett under allegations of the petition charging negligence on his part in the matters of lookout, speed, avoiding both collisions, control, driving on the wrong side of the center line, and failure to warn.

In reaching this conclusion we necessarily ignore testimony from other witnesses tending to show that the impact with the Falcon was caused by the sudden swerving of the Falcon into the path of the Corvair; that Garrett put on his brakes but could not prevent the impact with the Falcon; that the impact “knocked” the Corvair over the center line and 'into the northbound lane when the northbound truck was only 15 feet from the Corvair, and that the collision with the truck occurred almost instantly after the crossover and while the Corvair was still in motion.

Appellant’s second point is that the court abused its discretion in not granting plaintiff a new trial on the ground that the verdict was against the greater weight of the evidence.

The weight of the evidence is not open to question in this court. White v. Rohrer, Mo.Sup., 267 S.W.2d 31, 34 [2]. The determination whether a verdict is against the weight of the evidence is a matter within the exclusive province of the trial court. Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 560 [5]. The question having been raised in his motion for new trial and ruled adversely to plaintiff, that is the end of the matter. This court on appeal is not authorized to pass upon the weight of the evidence, Bloch v. Kinder, 338 Mo. 1099, 93 S.W.2d 932, 933; Scott v. Gray, Mo.Sup., 337 S.W.2d 38, 41 [3], and will not interfere with the action of the trial court approving a verdict assailed on this ground, Phillips v. Shaw, Mo.Sup., 381 S.W.2d 768, 770 [1], unless it clearly appears that the trial court has abused or arbitrarily exercised its discretion. “We cannot find abuse of discretion or arbitrary action in a case where the question of negligence was a jury-question, even though we should feel that as triers of the facts we might have decided it differently, when there is nothing to show passion, prejudice or misconduct.” Conser v. Atchinson, T. & S. F. Ry. Co., Mo.Sup., 266 S.W.2d 587, 591. The issue of the negligence vel non of the defendants Young and Smith was a jury question under the evidence. There was substantial evidence on behalf of the defendant Young that his Falcon did not collide with and that there was no impact whatever with any other vehicle. There was substantial evidence on behalf of the defendant Smith that the Corvair came into his path suddenly and at such close range that it would have been impossible for Smith to have avoided a collision between the truck and the Cor-vair. No evidence of passion, prejudice or misconduct appearing, there is no basis for a finding of abuse of discretion or arbitrariness on the part of the trial court.

Appellant’s third point is that the court erred in allowing counsel for defendant Smith during closing argument to make an incorrect statement about the testimony of plaintiff’s witness David Miller and in overruling plaintiff’s objection to the incorrect statement. Counsel commented on the discrepancy between Miller’s testimony at the trial and in his deposition as to the distance that separated the Corvair and the truck when he first saw the truck. At the trial he testified that five seconds after the Corvair came to a stop in the northbound lane he looked up and saw the oncoming truck, which was then 100-120 feet away. On cross-examination he admitted that in his deposition he had testified that he saw the truck just as the Corvair stopped, and that the truck was then 100-120 feet away. The objection was that there was no variance in the testimony, and the contention here is that it was highly prejudicial to attempt to destroy the testimony of the witness by arguing such alleged inconsistency. We find no error in the action of the court. There was a substantial and material variance between the witness’ testimony in the deposition and at the trial. The difference between a 5 second time lapse and no time lapse between -the time the Corvair stopped and the truck was first seen 100-120 feet away is the difference between the ability and the inability of Smith, under the evidence, to stop the truck. Counsel for defendant Smith had the right to comment on this difference in the testimony of plaintiff’s witness Miller in his deposition and at the trial. Pettis v. St. Louis Pub. Serv. Co., Mo.Sup., 240 S.W.2d 909 [5].

In his fourth point appellant excepts to another portion of the argument of counsel for defendant Smith. After pointing out the discrepancies between the testimony of the witnesses in their depositions and at trial, counsel argued that after these depositions were taken the engineering expert “came in the picture and he went out to the scene of the accident and said ‘Fellows, I’m sorry, but your estimates of distances aren’t good enough. The truck couldn’t have stopped in a hundred feet or two hundred and twenty feet. It would take two hundred and forty feet to stop the truck. So, if you’re going to have to make a case against the truck driver you’re going to have to develop that’s how far the truck was away.’ ” Counsel argued that it was “a lousy case, until you start building it up and manipulating the facts to fit what the expert here says.” Appellant complains that the court erred in allowing counsel to make this argument because “there was no evidence to support this allegation of conspiracy in the record,” and the only effect it could have would be to prejudice the jury against plaintiff’s witnesses and against plaintiff. The difficulty with appellant’s contention is that he made no objection at the trial when this argument was made, and did not request that the jury be instructed to disregard the argument or that counsel be reprimanded. “It has long been the general rule that when no objection is made to improper argument it is not a matter subject to review on appeal. The theory is that the erroneous feature thereof is waived, [citing cases] Also, the failure to request the trial court to instruct the jury to disregard improper argument * * * constitutes a waiver of the right to complain on appeal that the jury was not so instructed, [citing cases], and the same is true when there is no request that the trial court reprimand counsel for improper argument. * * * ” Olsten v. Susman, Mo.Sup., 391 S.W.2d 328, 330, 15 A.L.R.3d 1095. Appellant seeks to avoid this rule on the basis that the argument objected to was simply an extension and emphasis of the preceding argument, to which objection was made, and that under the rule announced in Jones v. Kansas City, Mo.Sup., 76 S.W.2d 340, 341, the objection should be regarded as applying to the entire line of argument. The prior objection, directed at the discrepancy above noted in the testimony of the witness Miller, was that “Mr. Miller’s testimony did not vary at all from the deposition to the testimony now.” That objection did not relate to the point now sought to be made, e. g. lack of evidence to support an argument of conspiracy to reconstruct the facts in order to make a submissible case.

Finally, appellant assigns error in not granting a new trial on the basis that one William D. Ousley, a member of the jury panel who was later elected foreman of the jury, did not truthfully answer the question on voir dire examination whether his past experience as a truck driver would prejudice him in favor of one of the defendants who was a truck driver. On voir dire Mr. Ousley revealed the fact that he had driven a truck eighteen years previously, and under questioning stated that this fact would not affect his ability to decide the case; that he could listen to all the evidence and make up his mind after all the evidence was in. He did not reply when the panel was asked if any of them knew any reasons why they could not give both sides a fair trial. At no time during the voir dire examination did court or counsel indicate to Mr. Ousley or to the panel that the evidence would develop a situation in which the jury would be required to determine whether a truck driver had sufficient time or distance within which to stop short of a collision with an automobile which appeared in his traffic lane. Nor did Mr. Ousley at any time during the examination indicate his attitude, understanding or feelings with reference to a truck driver facing such a predicament, or make any representation (or misrepresentation) or reference thereto. Following return of the verdict plaintiff and his attorney filed a joint affidavit stating that on the day the verdict was returned the foreman of the jury, one William D. Ousley, stated to them and in their presence, “I used to work as a truck driver, —I wouldn’t have brought back a verdict against the truck driver if he had a thousand feet to stop in.” The motion for new trial was argued but the record does not show that any oral evidence was heard. Ousley was not called as a witness and his affidavit was not filed. No counter affidavits were filed. The court denied the motion without comment.

The granting or denying of a new trial on the ground of misconduct on the part of a juror rests largely in the discretion of the trial court, and the action of the trial court in this respect will not be interfered with on appeal in the absence of a showing of abuse of discretion. Rovak v. Schwartz, Mo.Sup., 339 S.W.2d 756; 66 C.J.S. New Trial § 201b(2), p. 492.

The record does not disclose the basis for the ruling of the trial court on the motion for new trial. The affidavit having been filed and a hearing having been conducted on the motion we assume that the court considered the affidavit. The judge may have disbelieved the affiants. Or, assuming that the court believed that the foreman of the jury made these statements, the next question is the fact question as to what the juror meant by them. They are equivocal and subject to several interpretations. One possible interpretation is that proposed by appellant, namely, that the juror would not have joined in any verdict against any truck driver under any conceivable circumstances, regardless of what the facts may have been. The conclusion would be inescapable that a juror whose mind was so constituted would be prejudiced and disqualified. Another reasonable construction of the statements, however, is that they demonstrate a complete misapprehension or misunderstanding of the law of the case. Reasonable minds could differ on the interpretation to be placed on the statements attributed to the juror, and in such case there is room for the exercise of the court’s discretion in determining this fact question.

The affidavit will be considered in the light most favorable to the prevailing party, who is entitled to all reasonable inferences which may be fairly drawn therefrom in his favor. 66 C.J.S. New Trial § 198a. So considered, we are of the opinion that the statements made by the juror inhere in the verdict, and therefore fall within a forbidden field of inquiry. No one is competent to impeach a verdict by the making of an affidavit as to matters inherent in the verdict, such as that the juror did not understand the law as contained in the court’s instructions, or that he did not join in the verdict, or that he voted a certain way due to a misconception of the evidence, or misunderstood the statements of a witness, or was mistaken in his calculations, or other matters “resting alone in the juror’s breast.” Wright v. Illinois & Miss. Tel. Co., 20 Iowa 195, 210; 66 C.J.S. New Trial § 168. A juror who has reached his conclusions on the basis of evidence presented for his consideration may not have his mental processes and innermost thoughts put on a slide for examination under the judicial microscope. “Proof of such a fact is excluded for at least two reasons: first, because there would be no end to litigation if verdicts could be set aside because one juror did not correctly understand the law or accurately weigh the evidence; second, the. proof of his mental process is locked in the breast of the juror, and is not capable of refutation or corroboration.” Southern Pac. Co. v. Klinge, C.C.A., 10 Cir., 65 F.2d 85, 88.

On this record we cannot hold the trial court guilty of an abuse of discretion in denying the motion for new trial based on misconduct of the juror Ousley.

Accordingly the judgment in favor of the defendants Smith and Young is affirmed, and the judgment is reversed as to the defendant Garrett and the cause is remanded for a new trial of the issues as between plaintiff and defendant Garrett.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

SEILER and STORCKMAN, JJ., and MORGAN, Special Judge, concur.

HENLEY, P. J., not sitting.

      . “For aught we know, the court did not credit the statement. To accept the affidavit as absolute and conclusive proof would put it in the power of one person to destroy a verdict.” Clack v. Kansas City Electrical Wire Subway Co., 138 Mo.App. 205, 119 S.W. 1014, 1015.


author: LAURANCE M. HYDE, Special Commissioner.

text:
    Ruby WAND, Plaintiff-Appellant, v. CITY OF SHELBINA, Defendant-Respondent.
    No. 52689.
    Supreme Court of Missouri, Division No. 1.
    Oct. 9, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Nov. 13, 1967.

      Edward, Hess & Collins, Macon, for plaintiff-appellant.
    Bollow, Crist & Bollow, Shelbina, for defendant-respondent.
   LAURANCE M. HYDE, Special Commissioner.

Action for $35,000.00 damages for personal injuries sustained by falling on a sidewalk step in the City of Shelbina. The trial court directed a verdict for defendant and plaintiff has appealed from the judgment entered.

There was an inch wide crack, six or eight inches deep, all the way across the step involved, which had been there for months. The issues are causation (was plaintiff’s fall caused by stepping in the crack?) and contributory negligence (was plaintiff’s conduct contributory negligence as a matter of law?). Plaintiff was the only witness to testify to the facts on which these issues must be determined.

Plaintiff, then 74 years old, came north across Walnut Street (an east-west street) on Center Street (a north-south street) intending to continue north on the west side of Center Street. She had to step up from the street (six or eight inches) onto the defective step and then step up again (ten or twelve inches) from the defective step onto the sidewalk which ran along the west side of Center Street. The step was about a foot and a half wide. Plaintiff knew the crack was in the step and intended to avoid it. She said: “[Jjust as I had my foot ready to step, why, a car honked, and I glanced around. I thought it was my daughter. The next thing I knew my foot hit. I fell. I don’t know, my foot creeled and I caught my toe in the walk or something, and I fell just headlong. * * * I was just walking right up there and thought I knowed right where I was going to step. I raised my foot to step, and that car honked and I glanced around. When my foot hit, it turned or something, and it caught my toe and threw me. * * * I don’t really know where I put my foot. I thought I knowed where I was going to put it, but when I glanced I didn’t put it, I don’t guess, but there was a good place there to put my foot. I know that. * * * I was just in the process of stepping. I knowed where I was going to step, and when I glanced around, why, my foot just went in that there thing, caught my toe someway and it threw me. * * * I was watching and lifting my foot up to step on that step, and that car honked, and I just glanced around for a second, and I guess in that time my foot went down. I felt it touch the walk, and it kind of creeled and caught my toe, and it just threw me.”

As to causation, it is contended that plaintiff’s evidence was insufficient to show that the defective condition of the step caused her fall because she did not know what caused her to fall or whether her foot went into the crack. However, our view is that it would be a reasonable inference from all of plaintiff’s evidence, considered together, that her foot went into the crack in that step and that caused her to fall. As to contributory negligence, plaintiff’s contention is that “the car horn which plaintiff thought was her daughter’s was a sufficient diversion, in view of the degree of danger which the crack posed, to support a jury finding that plaintiff was not guilty of contributory negligence for putting her foot down on the crack instead of on the good piece of concrete along side of it.” Plaintiff cites Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226, l. c. 232, 74 A.L.R.2d 938; Stottlemyre v. Missouri Pac. R. R. Co., Mo.App., 358 S.W.2d 437, l. c. 441; Goldman v. City of Columbia, Mo.App., 211 S.W.2d 541, l. c. 543; Butler v. City of University City, Mo.App., 167 S.W.2d 442, l. c. 445, 447; 65A C.J.S. Negligence § 120(2), p. 64; 38 Am.Jur. 863, Negligence, Sec. 187; Annotation, 74 A.L.R.2d 950, 960. Some of these authorities are more appli cable to excuse of forgetfulness than to diverting attention at the time of encountering a defect or obstruction. However, it is stated in 25 Am.Jur. 760, Highways, Sec. 468: “The fact that the traveler’s attention was diverted from the way at the time of encountering a defect or obstruction therein, by some cause adequate to effect that result, will ordinarily prevent his being held guilty of contributory negligence, as a matter of law, in failing to observe or avoid it.” See also A.L.I. Restatement of Torts 2d, Sec. 289, Comment k.

A case applying that rule, in circumstances somewhat similar to this case, is Deane v. Johnston, Fla., 104 So.2d 3, 65 A.L.R.2d 957, where the plaintiff tripped over a scale on a sidewalk. Plaintiff knew the scale was there but while waiting near it for a bus, plaintiff’s employer, in an automobile stopped for a stop light, called her name. Plaintiff turned, started toward him also watching the traffic light, and fell over the scale. The court agreed with plaintiff’s contention “that the case was one for jury consideration because of the ‘distraction rule’ whereunder, if her attention was diverted from the known danger by a sufficient cause, the question of contributory negligence is for the jury.” Another similar case is McDonald v. Heinemann, Mo.App., 141 S.W.2d 177, in which the plaintiff fell over a scale on a sidewalk when just before he reached it “some passerby called out plaintiff’s name from out in the street, and as he turned his head in the direction from which the call had come, he stumbled over the scale.” The court held “the issues both of defendant’s negligence and of plaintiff’s contributory negligence were matters for the jury to determine.”

Another case on this issue is Dennis v. City of Albemarle, 242 N.C. 263, 87 S.E.2d 561. There a rather low electric power wire had been constructed over a road used frequently by the plaintiff. This wire was run from an old church to a tool house to operate saws used in construction of a new church. Plaintiff on the occasion of his injury was having hay hauled over the road and knew the wire was there. Plaintiff was standing on hay bales on the back of the truck with one Greene. Their heads were higher than the main hay load in front of' them. Plaintiff was watching for the wire, as was Greene, but had not yet seen it because of trees behind it. When he was within ten feet of the power line a workman on the steeple of the church called to plaintiff who instinctively looked in that direction and answered: “Good' morning, son.” When he turned back he looked for the wire but did not see it as it came sliding over the top of the hay in front of him. Green saw it, called “duck” and got out of its way but the wire struck plaintiff in the mouth and threw him off the truck. The court ruled: “Upon the evidence here presented, the inference is permissible that plaintiff responded involuntarily when accosted by one calling from the steeple of the church. It can hardly be said that, when plaintiff’s attention was momentarily diverted by this rather unusual greeting, the only permissible inference is that he failed to act as an ordinarily prudent person would have acted under the circumstances then existing.” In this case, another opinion was written on the petition for rehearing, 243 N.C. 221, 90 S.E.2d 532, on the claim “that the fact that the momentary diversion of his attention was an involuntary response to the workman’s call to him from the church steeple is irrelevant as a circumstance in his favor in determining what an ordinarily prudent person would have done under the same or similar circumstances.” The court overruled this contention, saying: “Under the circumstances the question here is not whether one who fails to look when he is under duty to do so is excused by a diverting circumstance. Rather, it is a question as to whether a person who is keeping a proper lookout is charged with contributory negligence as a matter of law because he is momentarily and involuntarily diverted.” Our conclusion is that we have the same question here and that it is an issue to be determined by the jury.

Defendant, of course, contends that the sounding of the automobile horn was only a trivial diversion which could not excuse plaintiff in the process of taking a step in close proximity to the defect in the sidewalk step. However, under the above authorities, we consider its triviality and effect to be for the jury to determine in deciding the issue of contributory negligence. Defendant also contends that plaintiff could have safely ascended the steps by using a handrail at the west edge of the steps. Plaintiff said she did not go to the handrail because she had to cross wavy pavement to get to it. We consider that any issue of contributory negligence based on failure to go to the handrail is likewise a jury issue.

We hold that the jury could reasonably have found that a signal from an automobile, which plaintiff could expect would mean that her daughter wanted to take her home, might have the same diverting effect as calling to the plaintiff by voice in the other cases discussed. We also hold that it would also be reasonable to find that such a diversion could cause plaintiff to make a misstep into the crack instead of stepping clear of it as she was attempting to do.

The judgment is reversed and the cause remanded.

PER CURIAM:

The foregoing opinion by HYDE, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Bert HOLBERT, Appellant.
    No. 52240.
    Supreme Court of Missouri, Division No. 2.
    Oct. 9, 1967.
    Motion for Rehearing or for Transfer to Court En Banc Denied Nov. 13, 1967.

      See also, Mo., 416 S.W.2d 129.
    Norman H. Anderson, Atty. Gen., Jefferson City, Don Anton, Special Asst. Atty. Gen., St. Louis, for respondent.
    Arthur Litz, St. Louis, for appellant.
   PRITCHARD, Commissioner.

The determinative issue on this appeal is whether the state adduced sufficient evidence to justify a finding by the court of guilt of the charge against defendant: carrying a concealed weapon in violation of § 564.610, RSMo 1959, V.A.M.S., i. e., “upon or about” his person.

It was stipulated that the testimony of the state’s witness, Officer John Reinhardt, given on a pre-trial motion to suppress evidence (on the ground of an illegal seizure of the weapon involved) would be accepted as a part of the state’s case of carrying a concealed weapon. Officer Reinhardt, a member of the St. Louis Police Department, found that defendant’s automobile had run into the back of a stopped vehicle at the corner of Goodfellow and Natural Bridge in St. Louis. He arrived about 8:30 p. m. and first interrogated the other driver for about twenty minutes. Defendant seemed to be under the influence of alcohol or some other intoxicant or possibly drugs, determined by Reinhardt by defendant’s actions, incoherent speech and need of assistance from his automobile. At the time defendant was removed from behind the wheel of the automobile, Officer Reinhardt heard something fall to the floor of the car. When he got defendant out on the street in such position that he would not fall, the officer turned to look as to what fell and saw an automatic pistol lying on the floor right under where defendant’s feet would have been. Another like pistol (an automatic) and a large sum of currency and checks from defendant’s business were later found in the back seat in or near a valise which had been forced open by the impact of the collision. Immediately after he turned around Reinhardt went into defendant’s car and recovered the gun and put it in his pocket.

On cross-examination, Officer Reinhardt testified that when he went to the scene he first saw defendant sitting behind the wheel slumped over with his head down on the steering wheel.

Defendant testified that he did not have a pistol that night, didn’t place one in the car, and did not own one of similar type— he had never seen the gun before trial. On redirect examination, Officer Reinhardt testified that he questioned defendant about the gun and he stated that he had bought the two pistols from a man by the name of Manning in East St. Louis.

The state, contending that the foregoing state of facts shows concealment (which facts must be viewed in the light most favorable to the state), quotes, “ ‘Under the statute defining this offense, the concealment, although not actually on the person, may be in such close proximity to the accused as to be within his easy reach and convenient control,’ ” State v. Conley, 280 Mo. 21, 217 S.W. 29 [2], and says, “it seems that the only possible- conclusion is that the appellant had a concealed weapon about his person.” Contrarily, defendant contends that there was no evidence as to where the gun was prior to the time Officer Reinhardt heard a'noise and then saw the pistol on the floor of the car where defendant’s feet would have been.

In the Conley case, supra, the appellant “rose from the seat of the wagon on which he had been sitting, and, drawing a pistol either from the seat or his pocket, he shot Conley in one of his legs.” The court held that appellant’s offered instruction, that if the jury found he had the pistol on the seat of his wagon and did not have it concealed on or about his person then it must find him not guilty, was properly refused. The reason assigned was that the instruction failed to hypothesize the fact as to appellant’s guilt if the evidence showed that the pistol was concealed on the seat of the wagon, and limited the finding to a “concealment ‘on or about his person.’ ” It was further held that a proper instruction was given which told the jury that the weapon was a concealed one within the meaning of the law if it was in the pocket of defendant’s clothing and concealed from view or was in the seat of his wagon concealed from view. 217 S.W. 29, 30. There was direct evidence that the weapon was concealed. So also in the cited case of State v. Mulconry, Mo., 270 S.W. 375, where the evidence showed that as the defendant raised up to get out of the car, as ordered by the detectives, a gun was on his righthand side against the cushion. As he stepped out it fell upon the seat. It could not be seen until defendant got up to get out of the car.

Defendant’s contention, upon the facts of this record, must be sustained. There was no evidence that the automatic pistol was concealed on his person or about his person (so as “not to be discernible by ordinary observation,” State v. Bordeaux, Mo., 337 S.W.2d 47, 49) prior to the time Officer Reinhardt saw it in plain view upon the floor of the car. Thus the relied-upon cases of State v. Conley, supra, and State v. Mulconry, supra, are distinguishable. More in point is the recent case of State v. Tate, Mo., 416 S.W.2d 103, where the judgment of conviction for carrying a concealed weapon was reversed where the facts failed to show where the gun was after defendant fired it a second time and before he threw it in the gutter. The officer did not see the gun at any time until he found it in the gutter. It was held, citing State v. Duggins, 284 Mo. 633, 225 S.W. 987, 988, that the evidence amounted to nothing more than a showing that appellant had an opportunity to carry a concealed weapon, and whether he did so was left to mere conjecture, and the finding was without evidentiary basis. 416 S.W.2d 105. There was no evidence here as to the location of the automatic pistol on or about defendant Hol-bert’s person so' as not to be discernible by Officer Reinhardt who came near to defendant in removing him from the car.

The judgment is reversed and defendant is ordered discharged.

BARRETT and STOCKARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.