text:
    STATE of Missouri, Respondent, v. James William STIDHAM, Appellant.
    No. 50806.
    Supreme Court of Missouri, Division No. 2.
    June 13, 1966.

      Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    James W. Stidham, pro se.
   DONNELLY, Judge.

In 1955, defendant was found guilty by a jury in the Circuit Court of Butler County, Missouri of the murder of Walter Lee Donnell during the riot in the Missouri Penitentiary on the evening of September 22, 1954. He was sentenced to life imprisonment. The judgment was affirmed upon appeal, the opinion of this Court appearing at 305 S.W.2d 7.

On March 9, 1964, defendant filed in the Circuit Court of Butler County, Missouri, his Motion to Vacate Sentence and Judgment under Supreme Court Rule 27.26, V.A.M.R. Defendant, in his motion, asserts that “he is unlawfully deprived of his liberty in violation of the Fourteenth Amendment to the United States Constitution, in that, the judgment and sentence herein is predicated exclusively upon the use of perjured testimony knowingly used by the State.” He further alleges that: “A James Marvin Creighton, a former inmate of the Missouri State Penitentiary, and a principal State witness during the above trial was induced by representatives of the State, namely, E. V. Nash, a former Missouri State Trooper, and presently Warden of the Missouri State Penitentiary; and James T. Riley, Cole County Prosecutor, to testify that he observed movant participate in the murder of Walter Lee Donnell, and to further testify that he had not been promised any consideration or leniency for his testimony. Whereas, the aforesaid Creighton did not observe the above murder, and he had been promised a reduction of sentence, or parole by the aforesaid Nash and Riley. And; B Herman Trout, a former inmate of the Missouri State Penitentiary, and a principal State witness during the above trial was induced by representatives of the State, namely, E. V. Nash and James T. Riley aforesaid, to testify that he observed movant participate in the murder supra, and to further testify that he had not been promised any leniency or other favorable consideration for his testimony. Whereas, Nash and Riley knew that neither Creighton nor Trout observed the above murder, and both, Nash and Riley did promise Trout and Creighton that they would be released from imprisonment if they would give the above perjured testimony against movant at his trial. Thereafter, the two aforenamed representatives of the State did secure the release of Creighton and Trout, and they were discharged.”

Defendant further alleges that he can prove, by testimony of Herman Trout, E. V. Nash, Charles Billings, Percy Little, and a taped recording alleged to have been secretly made and preserved, that Riley and Nash made a deal with Creighton and Trout whereby Creighton and Trout would receive their discharge from prison for giving perjured testimony.

The Circuit Court of Butler County, Missouri, considered the motion on April 20, 1964, and overruled it without an eviden-tiary hearing. Defendant perfected an appeal to this Court.

In State v. King, Mo.Sup., 380 S.W.2d 370, 372, 373, the applicable law under Rule 27.26, V.A.M.R., is stated as follows: “A motion filed under this rule to vacate a judgment of conviction is not a step in a criminal proceeding against the defendant, but is, like habeas corpus, a means of testing the validity of his detention after conviction. Under this proceeding a collateral inquiry may be made as to the validity of the judgment under which defendant is held. The proceeding is governed by Court rules applicable to civil proceedings. State v. Warren, Mo.Sup., 344 S.W.2d 88, 90 [2]; State v. Thompson, Mo.Sup., 324 S.W.2d 133, 135; State v. Johnstone, Mo.Sup., 350 S.W.2d 774, 777 [3-6], certiorari denied, 369 U.S. 877, 82 S.Ct. 1149, 8 L.Ed.2d 280. If the motion presents no material issues of fact, or if the issues presented may be determined by the record and files in the original case, the Court may summarily rule the motion, since the Court may take judicial notice of its own records and the prior proceedings in the case. Also, if only issues of law are presented the Court may summarily rule the motion. If material issues of fact not previously ruled are presented, a hearing must be had and the Court must ‘make findings of fact and conclusions of law with respect thereto.’ State v. Pickle and Proffit, Mo.Sup., 376 S.W.2d 181 and State v. Herron, Mo.Sup., 376 S.W.2d 192.”

“Missouri has fully recognized that the knowing use of false testimony invalidates a conviction.” State v. Thompson, Mo.Sup., en banc, 396 S.W.2d 697, 701; State v. Eaton, Mo.Sup., 280 S.W.2d 63; State v. Statler, Mo.Sup., 383 S.W.2d 534; State v. Worley, Mo.Sup., 383 S.W.2d 529. However, defendant’s conviction was .not, as alleged in defendant’s motion, predicated exclusively upon the use of the testimony of Creighton and Trout. Defendant’s written confession was a part of the State’s case and it was found to have been voluntarily given. State v. Stidham, Mo.Sup., 305 S.W.2d 7, 10. Further, Creighton and Trout did not, as alleged in defendant’s motion, testify at the trial that they observed the murder.

Creighton’s testimony, as it appears at page 320 of the original transcript on appeal, reads as follows: “Q. Now, you didn’t see who killed Donnell, did you? A. No, I couldn’t see it through this wall.”

Trout’s testimony, as it appears at page 389 of the original transcript on appeal, reads as follows: “Q. Is it your testimony that you don’t know who murdered Donnell, sir? A. Yes, sir. Q. You were not a witness to it? A. No, sir.”

Defendant’s attorney, in his closing argument to the jury, as it appears at page 733 of the original transcript on appeal, stated in part as follows: “ * * * That is a little thing, but on Trout’s testimony, and they need Trout and Creighton my friends, but neither one of them said they saw who killed Donnell. Neither one of them said that they saw it. * * * ”

The record shows that the testimony of Creighton and Trout was not as alleged by defendant in his motion. A claim for relief is not stated, a hearing was not required, and the trial court did not err in overruling the motion. State v. Kitchin, Mo.Sup., 300 S.W.2d 420; State v. Ninemires, Mo.Sup., 306 S.W.2d 527; State v. Cerny, 365 Mo. 732, 286 S.W.2d 804; State v. Garton, Mo.Sup., 396 S.W.2d 581.

The order and judgment are affirmed.

All concur.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Gordon Lee COOPER, Appellant.
    No. 50623.
    Supreme Court of Missouri, Division No. 2.
    June 13, 1966.

      Norman H. Anderson, Atty. Gen., Thomas J. Downey, Asst. Atty. Gen., Jefferson City, for respondent.
    No appearance for appellant.
   BARRETT, Commissioner.

While set forth in a long, single-count petition, commingled with extensive argument and brief, this is in fact a two-pronged proceeding by a prisoner under life sentence to (1) withdraw a plea of guilty under Criminal Rule 27.25, V.A.M.R., and (2) a motion to vacate sentence and judgment under Criminal Rule 27.26. The court in which the appellant, Gordon Lee Cooper, was originally sentenced examined the combined motions and “all of the records of this cause” and found that the motions (a) did not state “facts sufficient to constitute a cause for relief,” and (b) that “substantially the same issues involved in both of these motions” had been previously decided against the petitioner in another 27.26 proceeding (State v. Cooper, Mo., 344 S.W.2d 72, certiorari denied 368 U.S. 855, 82 S.Ct. 91, 7 L.Ed.2d 52) and therefore summarily denied relief. He has been furnished a transcript of this proceeding and again has been permitted to appeal to this court.

And before considering this appeal it is necessary to note the original charge and the circumstances in which it was filed. The appellant was charged with and entered a plea of guilty to robbery in the first degree. In brief the circumstances were these: On June 16, 1953, Cooper, then 32 years of age, was being held in the Butler County jail “for safe keeping for Stoddard County.” On that date when the jailer Landreth went to the jail to feed the prisoners, Cooper and another prisoner “jumped on Deputy Sheriff Landreth and beat him up severely,” took the jail keys and $160 in cash from his person, and escaped. On July 6, 1953, Cooper, after the appointment of two lawyers to represent him, entered a plea of guilty in the circumstances set forth in the former opinion, 344 S.W.2d 72, and was sentenced to life imprisonment. These facts appear from the former appeal and upon this appeal in complaining of the prosecutor’s failure to give the court certain information the appellant supplies these additional facts; “He failed to inform the Court as to the facts concerning the escape from jail. He failed to inform the Court that Mr. Landreth’s wallet was picked up from the floor after the terrible struggle and fight between Mr. Landreth and the defendant that took place at the time of the escape and that said wallet was picked up by the defendant, after defendant had Mr. Landreth locked into a cell and was on his way to the elevator shaft to leave the jail. He failed to inform the Court or describe the ‘so-called’ blunt instrument in some small way or to introduce such weapon into Court as evidence in the cause.”

In this background all the parties, the state as well as the appellant, are proceeding under a number of misapprehensions as to the force and effect of what has gone on before and what is open to consideration upon this appeal in this particular proceeding. The state has cited and relied upon cases, as State v. Howard, Mo., 383 S.W.2d 701, in which the appellant had first been tried before a jury and appealed his conviction to this court and thereafter instituted a 27.26 proceeding collaterally attacking the judgment. In those cases there was of course available to the court and the parties a full transcript and matters were or might have been presented which could not arise where as here there was a plea of guilty in the first instance. Then too upon his prior appeal in a 27.26 proceeding Cooper raised four specific matters against the judgment and sentence. They were in substance (1) that he was charged by information rather than by an indictment, (2) that he was denied the right to appear and prove certain allegations, (3) that he was denied a preliminary hearing and (4) that jurisdiction of his cause was in the magistrate court, not the circuit court. This court carefully considered each of these matters, found that they were without merit and of course affirmed the trial court’s denial not only of a hearing on the petition but of its summary dismissal of the proceeding. But the four matters raised in that appeal are not again raised in this proceeding and obviously the opinion in that case is not conclusive as to the entirely different matters sought to be raised in this proceeding, particularly as to the motion to withdraw the plea of guilty under rule 27.25. On the other hand, while apparently recognizing the necessity of invalidating and setting aside his plea of guilty, the appellant nevertheless attempts to raise certain matters that could only have occurred upon a jury trial of the robbery charge on its merits, eviden-tiary matters and other questions that necessarily would have been in a motion for a new trial or considered only in an appeal on its merits and this he may not do upon this particular appeal. State v. Worley, Mo., 371 S.W.2d 221; State v. Cerny, 365 Mo. 732, 286 S.W.2d 804; Richardson v. United States, (Eighth Circuit) 217 F.2d 696. And these matters, such as failure of the state to produce the “blunt instrument” with which Cooper struck Mr. Landreth, will neither be set forth nor considered upon this appeal, it is sufficient to say that his own statement of the facts demonstrates his guilt of robbery in the first degree and in the circumstances a punishment within the statutory limits. RSMo 1959, § 560.135, V.A.M.S.; State v. Churchill, Mo., 299 S.W.2d 475.

In his petition the appellant sets forth nine of these “allegations raised in point and authorities cited” all of which he claims in one way or another infringe his constitutional rights or constitute reasons why he should, thirteen years after the event, be permitted to withdraw his plea of guilty. Mere conclusions aside, five of these points are related and attempt to present the question that arises when both court and counsel, often when there is a lack of defense counsel, are misinformed as to a prisoner’s prior felony record resulting in a “careless or designed pronouncement of sentence on a foundation so extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, that renders the proceedings lacking in due process.” Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690, 1693; Ex parte Hoopsick, 172 Pa.Super. 12, 91 A.2d 241. Needless to say due process does impose some restraint “to assure the essential fairness of the procedure by which a judge shall exercise discretion in fixing punishment within permissible limits” (Annotation 3 L.Ed.2d 516) but upon this record there is no allegation of fact and no circumstance making a fact issue as to any material matter entering into the appellant’s plea of guilty and sentence.

Going only to the withdrawal of his plea of guilty his claim of “false information” does not relate to his prior felony record, which, incidentally is not denied, it relates only to an assertion that the court was misinformed as to any “detainers or ‘hold orders’ that he (the prosecuting attorney) claimed was issued by Federal authorities and State authorities from Stoddard County, and placed against this defendant, in the hands of the Sheriff, to be delivered to the Warden of the Missouri State Penitentiary when he delivered the prisoner to this institution.” To support this assertion the appellant attaches his letters to the Sheriff of Butler County, an answer letter by a deputy sheriff, and letters to and from the records clerk at the penitentiary in Jefferson City. These letters indicate that there was no “detainer” at these two points for the appellant. But as stated, there is no denial of his prior felony record and there is no denial of the substantive offense of robbery — his own statement here is a tacit admission of guilt. And even if there was no “detainer” and even though the court was incorrectly informed as to this fact, it is obvious from his initial incarceration in.the Butler County jail for “safe keeping” for Stoddard County that there could have been a “hold order” for some offense other than the robbery charge to say nothing of his assault upon the deputy sheriff and his escape from the Butler County jail.

Furthermore, the facts recited in State v. Cooper, Mo., 344 S.W.2d 72, show that the appellant and his counsel were fully and clearly informed as to the charges and had every opportunity to correct any misstatements by the prosecuting attorney which may have entered into the judge’s fixing of punishment. There was no holding out here of false hope, no fraud and no inducement to enter a plea of guilty as in State v. Hovis, 353 Mo. 602, 183 S.W.2d 147. On the contrary, the plea of guilty was advisedly entered, as his counsel said to the court in 1953, “We had several conferences with the defendant. It appears that his talents and energies have been misdirected on several occasions. In view of his past record and the present charges pending against him, as his attorneys, we have recommended that he take this step in pleading guilty before the Court at this time, upon his advice that he is guilty of this charge.” Upon this record, made when the appellant entered his plea of guilty, the allegations upon which he now relies, the mere lack of any “detainers,” are insufficient, even assuming the truth of the assertions, to demand the setting aside of his plea of guilty under rule 27.25 or to state a claim for “collateral attack” and relief under rule 27.26. State v. Harris, Mo., 382 S.W.2d 642.

The appellant’s other claim, particularly as to the withdrawal of his plea of guilty, is that he entered a plea of guilty “because of fraud and collusion, apprehension and lack of representation by court appointed counsel. There was collusion and agreements between defendant’s court appointed counsel and counsel for the state, which were never revealed to defendant in their true form. Defendant was under constant duress and threatened with the gas chamber. He was lead to believe by his counsel that he had no defense, and that there were no mitigating circumstances when, in fact there were, and the petitioner or defendant did have a good defense. There were circumstances that would have merit a charge of assault and jail break at the very most. Counsel for the state and the defendant had full knowledge of this.”

The appellant does not relate any “mitigating circumstances” and he does not set forth any fact or circumstance that would constitute a “good defense” to the charge of robbery and it requires no illustration to demonstrate that his mere conclusionary charges and assertions as to his counsel and the state’s counsel are without foundation and in no event state a claim upon which he is entitled to a hearing (State v. Harris, supra) and the order summarily overruling the appellant’s motions is affirmed. State v. Cerny, supra; State v. Worley, supra; Richardson v. United States, supra; State v. Howard, Mo., 383 S.W.2d 701.

STOCKARD, C., concurs.

PRITCHARD, C., not sitting.

PER CURIAM:

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

All of the Judges concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Fred Douglas PARKER, Defendant-Appellant.
    No. 51488.
    Supreme Court of Missouri, Division No. 2.
    June 13, 1966.
    Norman H. Anderson, Atty. Gen., Jefferson City, James J. Sauter, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Stewart v. Bruntrager, Raymond A. Bruntrager, Joseph G. Stewart, St. Louis, for appellant.
   BARRETT, Commissioner.

Because he shot and killed his half brother, Sterling Bourne, the appellant Fred D. Parker was charged with murder in the second degree. RSMo 1959, § 559.020, V.A.M.S. A jury found the appellant guilty of the lesser and included offense of manslaughter (RSMo 1959, §§ 556.220, 559.070, V.A.M.S.; State v. Foster, Mo., 338 S.W.2d 892), and since he had a prior felony record of two convictions (RSMo 1959, § 556.280, V.A.M.S.), including another manslaughter conviction, the court fixed his punishment at ten years’ imprisonment. RSMo 1959, § 559.140, V.A.M.S.

Sterling Bourne, age 37, was a large man, the witnesses said six feet one, two or three inches tall, weight 230 to 260 pounds. The pathologist who performed an autopsy and recovered one of three bullets from his body said that “by actual measurement he was six feet tall” and weighed “approximately 220 pounds.” He had once been in a veterans’ hospital for what his mother described as a “nervous breakdown” or “some nervous disturbance” and in describing Sterling she said that he “always wanted to boss all his brothers.” Fred’s precise height and weight do not appear but he was obviously much smaller than his brother.

In brief, the state’s evidence was that on September 7, 1964 (Labor Day), Sterling had an all-day barbecue in his backyard at 4324 Lexington Avenue. There were a large number of “floating” guests, fifteen to twenty most of the time, young and old, relatives and friends, including his half brother Fred Parker (who brought along his drinking companion Gulley) and their mother Evelyn Williams. The guests were not all personally acquainted with one another, however, and some were particular friends and partisans of Sterling’s and some, at least two, were friends and adherents of Fred’s. Some witnesses- say that Parker arrived at the party in early afternoon, 2 to 3 o’clock, Gulley says 4 to 4:30, but all the witnesses were quite indefinite as to time and very vague as to conversations. In any event all the witnesses agree that Fred and Sterling were “arguing,” some said that they were arguing “about Fred’s children,” but most witnesses were like Gulley, “I don’t know how the argument come up, but Sterling was doing most of the talking.” But it was at this point in the day’s events that “all of a sudden,” their mother said, “I turned around and Sterling had him in his arms like this, shaking him. * * * Then he threw him on the ground and he hit him up beside his head. * * * No, Fred didn’t say anything to Sterling * * * at least I didn’t hear him say anything to him, and when I turned around, I was eating, I told you, and when I turned around he had Fred up shaking him like a dish rag (indicating).” Fred did not fight back and “He (Sterling) finally let him go hisself” and thus that phase of their encounter ended. As to why and how it ended, Gulley said, “That is a little confusing, I can’t say definitely who stopped it, or how it was stopped, but after it was broken up, well, I imagine about four or five minutes elapsed before the next thing I know he had him again, and threw him down again, and punching him.” Some time elapsed after this episode, Gulley says five minutes, and Fred was going to leave on an errand and, according to their mother, “Sterling grabbed him again and knocked him down.” But immediately Fred got up and “put his arms around him (Sterling) and said that was his big brother and he * * * He kissed him and said he was — he wouldn’t let nobody hurt him, and he wasn’t going to hurt him and wouldn’t let anybody else hurt him.” Carrie Blue, another guest, had gone in the house and “looked out and they were both on the ground, and one of them (Fred) said to the other one, ‘I won’t hurt my own brother, I love my brother, my brother, and we are not going to hurt each other.’ * * * They was hugging each other” and Fred kissed Sterling and then left.

As Fred and Gulley were leaving, Rose Hughes says 15 to 20 minutes after the second encounter — Gulley said, “I guess maybe about an hour or forty-five minutes, something like that” — Rose yelled and asked Fred to bring her a package of cigarettes. Fred and Gulley left in Fred’s truck; they went over on Newstead and St. Louis Avenue to a liquor store and “bought cigarettes and a couple of half pints of gin.” They were “gone for quite a while” and came back to the party to pick up Fred’s kids. No one seemed to particularly notice just when Fred returned but all agree that Sterling was sitting on the wooden bench at the barbecue table between Rose and a man and this is their mother’s version of the shooting: “I was over at the barbecue pit and tending to some barbecue that was half done. * * * While I was standing there I heard a shot, and when I turned around Sterling was falling back off of the seat, the barbecue seat. * * * I saw him falling back. * * * Well, Sterling was crawling back across, and he shot him again, and then at that time I ran up the steps to call the police * Sterling was “crawling” towards a fence, most witnesses said scooting on his back, when Fred fired the second and third shots into his thighs. Sterling’s wife was in the house and heard a shot, she “looked through the window, because I was sitting by the window, I saw Fred pointing the gun towards Sterling and he was falling from the bench on which he was sitting. Then I ran downstairs right then, * * * and on the way down I heard another — something that sounded like another shot, and I came outside and ran up to him, and I saw the third shot, and I threw my body across him. * * * He had crawled to the fence that was about, oh, about ten or fifteen feet from the bench.” And Sterling said “Don’t shoot me, Fred, I won’t prosecute, don’t shoot me.” And Sterling’s wife continued, “Fred came up to two feet of me, kicked after me and said, ‘You had better get up from there or I will shoot you too,’ and he fired a shot that went over my head and — well, he was still there with the gun, and then he backed off again and shot another shot in the ground, directly in the ground, and looked and said, ‘I guess you had better take him to the hospital now.’ ” She was positive that a total of five shots were fired and in this and in Fred’s threats to shoot her she was corroborated by Carrie Blue.

The police were called at 6:08 and Officer Kroeck walked up to the appellant and “asked him if there was a shooting there” and Fred said, “Yes, something happened in the alley” and as the officer went to investigate the appellant, Gulley and Rose Hughes all left in Fred’s truck and were arrested at 7:20 that evening. The arresting officer found a nine-shot .22 caliber pistol on the floor of the truck, the cylinder had been removed and was wrapped in a newspaper and there was one live bullet in the cylinder. The appellant said that it was his gun and he admitted that he had shot his brother with it.

This evidence and these circumstances support, of course, the included charge of manslaughter (State v. Richardson, 364 S.W.2d 552, 554) and are set forth in some detail as necessary background for the appellant’s briefed and argued assignments of error.

The first complaint is that the court erred in permitting the' state on redirect examination of Officer Kroeck to read in evidence that part of a police report setting out what Evelyn Williams had said because it also purported to contain what a child, Eva Rice, had said as to the number of shots fired. As the appellant urges, the police report was hearsay and was of course inadmissible in evidence for possibly a number of reasons not necessary to mention here. State v. Gregory, 339 Mo. 133, 96 S.W.2d 47; State v. Gorden, 356 Mo. 1010, 204 S.W.2d 713. But this subject was not mentioned until the appellant’s cross-examination of Officer Kroeck when there were these questions and answers:

“Q. Did anybody tell you, any of the witnesses, there were more than three shots fired ?
“A. Eva Rice, I believe it was.”
“Q. You would have put that in the report if she differed with the other witnesses ?
“A. Due to her age and the number of shots, it was just a little out of line.”
* * * * * *
“Q. Officer, the question I asked you, if Eva Rice told you it was more than three, wouldn’t you put that in your police report?
“A. Due' to the fact I did not — she corroborated Evelyn Williams, the series of events were the same except for the number of shots.
“Q. Did you put that in there?
“A. According to their statement, all nine or ten shots, it was a little outrageous.”

When state’s counsel on redirect examination started into this subject over defense counsel’s objection the court overruled the objections stating “it’s just corroboration,” meaning no doubt “cumulative.” In any event this is all there was to it: “Q. You testified you reflected that statement in the police report to the extent that Eva Rice corroborated Williams’ statement, isn’t that correct? A. Yes, sir. Q. Evelyn Williams’ statement? A. Yes, sir.” There are other details connected with this incident but the appellant having interjected the whole subject into the case, largely no doubt for the purpose of discrediting the officer, is now in no position to complain of the state’s explanation on redirect examination. Affronti v. United States, 8 Cir., 145 F.2d 3; State v. Schenk, 238 Mo. 429, 456, 142 S.W. 263, 270.

The court gave Instruction 3 upon the subject of self-defense, and the second paragraph attempted to submit the hypothesis that Fred “unnecessarily” shot and wounded Sterling “when he did not have reasonable cause to believe that the said Sterling Bourne intended to kill him or to do him some great bodily harm, or that the defendant Fred Douglas Parker wilfully sought or brought on the difficulty or voluntarily entered into such difficulty, then in that case the defendant cannot justify himself on the ground of self-defense and you cannot acquit him on that ground” As the appellant urges, the instruction is erroneous and why after more than twenty-six years of condemnation it would be resurrected, probably from State v. Roberts, 280 Mo. 669, 217 S.W. 988, and again given is not known. In State v. Miller, (1940) 346 Mo. 846, 849-850, 143 S.W.2d 241, 243, the court lists the previous six cases condemning the instruction for the reason “ ‘that expressions so broad and unqualified include even voluntary acts of the defendant done in self-defense. It is said, in other words, that if a defendant is attacked without provocation on his part and voluntarily defends himself, he voluntarily engages in the fight, and yet by such an instruction he is denied his legal right of self-defense.’” The objection to this phase of the instruction is that it tells the jury that even though the defendant is attacked by the deceased he “voluntarily” engages in the combat and is thereby deprived of his right to self-defense. State v. Williams, 337 Mo. 884, 893, 87 S.W.2d 175, 179, 100 A.L.R. 1503. The state does not defend the instruction but contends that there was no evidence upon which to base the hypothesis of self-defense and, therefore, the submission of the issue was more favorable to the appellant than he deserved and any error in the instruction harmless—“the defendant suffered no damage from the error, because there was no evidence of self-defense in the case.” State v. Lewis, 118 Mo. 79, 85, 23 S.W. 1082, 1084; State v. Reed, 137 Mo. 125, 134-137, 38 S.W. 574, 576-577; State v. Blunt, 110 Mo. 322, 342, 19 S.W. 650, 655; State v. Gilmore, 95 Mo. 554, 564, 8 S.W. 359; State v. Baker, Mo., 277 S.W.2d 627. Thus there arises and is presented upon this appeal the meritorious question of whether there was any evidence that Fred Parker shot his half brother Sterling Bourne in self-defense necessitating a correct and proper instruction on the subject. State v. Wright, 352 Mo. 66, 175 S.W.2d 866.

“The right to kill in self-defense is founded in necessity, real or apparent” (26 Am.Jur. [Homicide], § 137, p. 249) and before such extreme measure may be lawfully resorted to the record must show that the appellant acted “under at least an apparent necessity, in order to save himself from death or great bodily harm.” 40 C.J.S. Homicide § 114, p. 983; State v. Page, Mo., 130 S.W.2d 520, 523. Insofar as material to this case, the language of the justifiable homicide statute is that “Homicide shall be deemed justifiable when committed by any person in either of the following cases: * * * (2) When committed in the lawful defense of such person * * when there shall be reasonable cause to apprehend a design * * * to do some great personal injury, and there shall be reasonable cause to apprehend immediate danger of such design being accomplished.” RSMo 1959, § 559.040(2), V.A.M.S. Under the general rules and the statute reasonable cause and necessity are to be viewed in the light of the circumstances as they appeared to the defendant. 40 C.J.S. Homicide § 126, p. 1003. But there must have been some act or demonstration on the part of the deceased inducing a reasonable belief that the defendant is about to suffer great bodily harm (26 Am.Jur. § 142, p. 255), some overt act of presenting or drawing — “Where the deceased has acted in such manner as to induce a reasonable belief that he is preparing or attempting to use a deadly weapon, such action will constitute sufficient ground for apprehension of danger to justify the defendant in taking extreme measures in self-defense, but this rule will not apply where there is no reasonable ground for apprehending immediate danger.” 1 Warren, Homicide, § 155, p. 740. With these general rules in view as background “(a) 11 of the attendant facts are important in determining whether the killing of a person by the accused was done in self-defense.” 26 Am.Jur. § 142, p. 255.

The essentially substantive evidence adduced by the state has been noted and in it there are no circumstances that would justify the hypothesization of a justifiable killing. In this particular case there were no threats (State v. McGee, 361 Mo. 309, 315-316, 234 S.W.2d 587, 591), the only relevant circumstance established from the state’s witnesses was Sterling’s size and strength but on that score the appellant had no more to apprehend than another simple assault and battery (40 C.J.S. Homicide § 123a, p. 999) and that alone would not justify a killing in self-defense. And, it should be noted, no gun or other weapon was found on Sterling. As stated, the circumstances relating to reasonable cause and necessity are to be viewed in the light as they appeared to the appellant but in this case, unlike a number of instances, Fred did not testify and there is no way of judging his subjective state or just what he may have in fact apprehended, and ultimately the sufficiency of the evidence to support the hypothesis of a killing in self-defense, except as it is inferentially made to appear from the testimony of others.

Two witnesses, his friends Gulley and Rose, testified on behalf of the appellant and if there is a circumstance warranting the submission of self-defense it must be found in their testimony. Fred and Gulley had been together since midmorning, riding around in Fred’s truck and drinking, and Gulley had seen the .22 caliber revolver in the glove compartment because it “didn’t have a door on it.” However no one seems to have known when the gun was transferred to Fred’s person. Gulley says that after running their errand they returned to Sterling’s barbecue and as they walked across the backyard Sterling was sitting on the bench of the barbecue table, Rose on his left and another man on his right, Fred was “on this other side of the table,” opposite Sterling and he says, “There was a few words passed, but what was said I don’t know.” But as Fred tossed the cigarettes to Rose he thought Sterling said, “ ‘Nigger, why didn’t you clean up,’ or something to that effect.” Gulley says that at that juncture he moved around on the side of the table,

“ — and Sterling lunged up from the table, and that is when I heard the shot.”
* * * * * *
“Q. You say Fred shot at his brother as he lunged toward him, is that the idea ?
“A. Yes, sir.”
* * * * * *
“Q. How many times did he shoot, do you know?
“A. I only heard three shots fired.”
* * * * * *
On cross-examination these were the questions and answers to and by Gulley:
“A. * * * He (Fred) was about three feet from the table.”
* * * * * *
“Q. Now, did Sterling Bourne lunge across the table at him? A. Yes, sir.
“Q. He came across the table?
“A. He was getting up as if to come across the table.
“Q. And— A. When he was shot.”
* * * * * *
“Q. And you never saw the gun in Fred Parker’s hand prior to hearing the first shot?
“A. No, I didn’t.”
* * * * * *
“Q. And we have got Sterling Bourne starting to come across; which way did he comg originally?
“A. Across, when he came out from the table, after he was shot, I imagine.
“Q. Before he was shot which way did he go ?
“A. Toward leaning over the table.”
* * * * * *
“Q. Did he make any effort to put his foot up to climb over the table?
“A. No.
“Q. You heard a shot? A. Yes, sir.
“Q. Then what did he do?
“A. Oh, I can’t say; he rose and had moved and he came out from the table.”

These were the crucial questions to and answers by Rose:

“Q. What happened when Fred came back in?
“A. Well, when Fred came in I said to him, T bet you forgot my cigarettes,’ and he said, ‘No, I didn’t,’ and he tossed them to me. At that time I got up from the table, and I wasn’t side by side of Fred, I was very close to him, and as far as I can remember they started talking or I would say arguing, you know, and Sterling motioned to get up, you know, he was in the process of getting up, and it looked to me as though he was getting ready to go in his pocket.
“Q. All right.
“A. That is what it looked like to me.
“Q. Then what happened?
“A. After then I heard the shot.”

On cross-examination:

“Q. You don’t know which one said which ?
“A. I don’t know.
“Q. Then you said Sterling, and what did Sterling do?
“A. He was in the process of getting up.
“Q. All right. Did he get fully up or was he in the process of getting up?
“A. I said he was in the process of getting up, in a position like this (indicating).
“Q. Where was his hand ?
“A. Well, his right hand looked to me — that is the way it looked to me as though he were going in his pocket.
“Q. Now, would you tell us exactly what he did with his right hand, how did he go?
“A. You might say like a man would get ready — .
“Q. In the process of getting up from the bench and going like this, too?
“A. Well, like say you were getting ready to go in your pocket, how would you look?”
“A. He wasn’t reaching in his pocket, I said it looked to me he was getting ready to go in his pocket.
“Q. He was getting ready to go?
“A. I didn’t say he put his hand in his pocket.”

It is not necessary to characterize this testimony or to separate conclusions from statements of fact, or to indicate permissible inferences, it is self-explanatory and it is not of such probative force as to compel an instruction submitting the hypothesis of a killing in self-defense. “Certainly, at the time the fatal blow was struck by the appellant, he did not have reasonable ground to believe that the deceased was about to take his life or do him great bodily harm. As there was no evidence to sustain an instruction on self-defense, it was not error to refuse it.” State v. Bennett, Mo., 87 S.W.2d 159, 164. And to note only briefly, in addition to the Bennett case, the cases nearest in point in theory and factually are State v. Wilson, 98 Mo. 440, 11 S.W. 985, and State v. Lewis, 118 Mo. 79, 23 S.W. 1082. In State v. Wilson, “I said ‘I don’t want you to say that any more.’ Graves raised the shovel to his head like that, and said ‘the way is open; pitch in.’ I hoisted the hoe. * * * I just wanted to keep him from killing me. When Graves drew the shovel I drew the hoe.” The court said, “The danger must be apparent and impending and one from which defendant cannot, without further hazard, apparently deliver himself, except by striking the fatal blow. There is not a particle of evidence in the whole case which tends to show that, from the beginning of the altercation until the fatal blow was struck, the defendant had any reason to believe he was in imminent danger. * * * This was no case for an instruction on self-defense, and defendant would have had no cause to complain if none had been given; much less to criticize those that were given.” In State v. Lewis the deceased came along the street with his overcoat on and his right hand in his right pocket and the defendant said, “ ‘Howdy, Alf’; and deceased replied, ‘You son-of-a-bitch,’ whereupon the deceased started to turn around facing defendant, making at the same time an effort to pull his hand out of his pocket, when defendant drew his pistol, and shot deceased in the head, back of the left ear * * *. After the death of Spencer, a slung shot was found tied to his right arm, his hand still being in his pocket.” As to error in a self-defense instruction the court said, “there was no evidence of self-defense in the case.”

Citing a single civil case, Streeter v. Washington Fidelity National Ins. Co., 229 Mo.App. 33, 68 S.W.2d 889, the appellant has a third assignment of error in which it is complained that it was error to include in the hypothetical question to Dr. Mitchell, who operated on Sterling for his gunshot wounds, “the assumption that the deceased was in good health because there was no evidence to support it.” In this connection it is said that the only evidence in point indicated that he was in poor health. The latter statement is based on the fact that Sterling had once been in a mental hospital for three months, that he was obese and that he had an unusual and constant thirst for water. It is not necessary to consider this assignment in detail and in the light of this record, the objection amounts to no more than a technical violation of the general rules relating to hypothetical questions to doctors, even if erroneous there is no attempt to demonstrate just how the error may have been manifestly prejudicial to the appellant. 32 C.J.S. Evidence § 551(2) d, pp. 534-535; State v. Beckner, 194 Mo. 281, 91 S.W. 892, 3 L.R.A.,N.S., 535; Schrader v. Kessler, Mo., 178 S.W.2d 355.

For the indicated reasons the judgment is affirmed.

STOCKARD, C., concurs.

PRITCHARD, C., not sitting.

PER CURIAM.

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

All of the Judges concur.


author: HOLMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Frederick Donald MACON, Appellant.
    No. 51550.
    Supreme Court of Missouri, Division No. 1.
    June 13, 1966.

      Norman H. Anderson, Atty. Gen., Moody Mansur, Asst. Atty. Gen., Jefferson City, for respondent.
    Newmark & Baris, Irl B. Baris, St. Louis, for appellant.
   HOLMAN, Presiding Judge.

Defendant has appealed from the order of the trial court overruling his motion to vacate filed under S.Ct. Rule 27.26, V.A.M.R.

On March 7, 1962, a jury found defendant guilty of the offense of first degree robbery and the court, under the provisions of § 556.280, RSMo 1959, V.A.M.S., fixed his punishment at imprisonment in the penitentiary for a period of ten years. On March 19, 1962, defendant’s motion for new trial was overruled and he was formally sentenced by the court. At that time defendant also withdrew his plea of not guilty to charges of burglary and stealing and entered a plea of guilty thereto. The court sentenced him to five years’ imprisonment on each offense but provided that those sentences should run concurrently with the sentence in the robbery case.

The motion to vacate sought to set aside the judgments in both cases. In State v. Engberg, Mo.Sup., 391 S.W.2d 868, we indicated that in a proceeding under Rule 27.26 it is improper to attack more than one judgment in a single motion. However, since these judgments were entered at the same time and involved related offenses we will consider the motion on appeal as applicable to all of the judgments.

In his effort to set aside the robbery judgment defendant alleges (1) that the assistant circuit attorney made prejudicial and highly inflammatory remarks at the time of exhibiting a shotgun to the jury, at which time he was rebuked by the court although defendant’s counsel failed to object; and (2) that he was denied due process because his appointed counsel (not his present attorney) was so inexperienced and incapable that he did not render effective assistance to defendant.

The first point alleged, if true, would have been merely a trial error which may not be considered in support of a motion of this nature. State v. Hagedorn, Mo.Sup., 305 S.W.2d 700. However, we will discuss it because it is also relied on to support defendant’s contention relating to the ineffectiveness of his counsel. A sawed-off shotgun (alleged to have been used in the robbery) was admitted in evidence. Just as the jury was about to retire to begin its deliberations the assistant circuit attorney picked up the gun and indicated a desire that the jury take it to the jury room. The trial judge (out of the hearing of the jury) rather sternly advised him that he should not exhibit the gun in that manner and that it should not be taken to the jury room. The court then asked defendant’s attorney if it was “all right with you.to send it down,” and upon his objection the matter was apparently abandoned.

We do not see that defendant’s attorney was deficient in any respect in regard to the foregoing incident. The trial judge was apparently under the erroneous impression that the exhibit should not be sent to the jury room except by agreement. He therefore took action so quickly that there was no occasion for an objection. Later, when the question was presented to him, defendant’s counsel objected and the gun was not sent to the jury room. We are unable to see how any more could have been accomplished by any attorney.

In order to determine the issue concerning the effectiveness of the services rendered by defendant’s attorney we' have, perhaps ex gratia, read the entire transcript of the trial. The state presented a number of lay witnesses who testified that defendant confessed to the offense in their presence. In an effort to diminish the ef-feet of that testimony defendant’s attorney cross-examined those witnesses, as well as others, extensively, and, we think, rather skillfully. He also presented a witness who testified to facts supporting' defendant’s alibi, and made about the only type of argument which could have been made under the circumstances.

As indicated, we have concluded that defendant was represented in a creditable manner and that the contention in that regard affords no basis for vacating the judgment. State v. Worley, Mo.Sup., 371 S.W.2d 221; State v. Schaffer, Mo.Sup., 383 S.W.2d 698.

In regard to the judgments entered on his plea of guilty to the burglary and stealing charges defendant alleged that “his plea of guilty was involuntary: he was on parole from the State of California and, in addition to having been found guilty, he was an easy prey to the veiled threats and implications to what ‘could happen to him on the other charge if he did not plead guilty’: Trial under the Habitual Criminal Act. * * * [N]o inquiries were made by the court as to whether such plea was voluntary, [or] whether the accused knew the consequences and implications of such plea * * The transcript discloses that after the motion for new trial was overruled in the robbery case the circuit attorney mentioned the other charges to the court and then the following occurred: “Mr. Kroening: We have previously entered a plea of not guilty. This morning, at the court’s discretion, we would like to change that plea to a plea of guilty. The Court: Mr. Macon, you have heard the statement of the Circuit Attorney and the statement of your counsel. Do you have anything to say, or any reason or cause to give to this Court why the sentence and judgment of this Court should not now be pronounced against you? Mr. Frederick Donald Macon: No, sir. [The circuit attorney then gave a brief statement of the facts.] (Discussion off the record.) The Court: Do you have any reason to give the Court why sentence should not be pronounced against you? Mr. Frederick Donald Macon: No, sir. The Court: The Court will sentence you to the state penitentiary for five years on the charge of burglary second degree, and five years on the charge of stealing: these sentences to run concurrently with the sentence imposed in Cause No. 1654-J.”

The allegations concerning “veiled threats and implications” are mere conclusions and are insufficient to warrant a hearing. Defendant has also alleged, however, that the court failed to ascertain whether he knew the consequences of his plea of guilty before accepting it. We have held that under certain circumstances a failure of the trial court to explain the consequences of a plea of guilty before its acceptance is error, even where the defendant is represented by counsel. See State v. Blaylock, Mo.Sup., 394 S.W.2d 364, and S.Ct. Rule 25.04. However, under the circumstances presented in the case before us, we do not think defendant was prejudiced by the failure of the trial court to explain the range of punishment for the offenses involved. This for the reason (among others) that the court stipulated that the sentences imposed were to run concurrently with a sentence previously imposed. Since the plea of guilty did not result in sentences which required that defendant serve any additional time in prison, we rule that no prejudicial error resulted from the failure of the court to explain the range of punishment to defendant before accepting his plea of guilty.

As indicated, we have concluded that the record discloses that the defendant is not entitled to the relief sought in his motion and we accordingly rule that the trial court did not err in overruling it without a hearing.

The judgment is affirmed.

All concur.


author: HYDE, Judge.

text:
    STATE of Missouri, Respondent, v. Donald Lee CUFFIE, Appellant.
    No. 51656.
    Supreme Court of Missouri, Division No. 1.
    June 13, 1966.
    Norman H. Anderson, Atty. Gen., Jefferson City, Michael J. Yatkeman, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Taken as submitted by appellant.
   HYDE, Judge.

Defendant, charged under the Habitual Criminal Statute (Sec. 556.280) was found guilty of burglary, second degree, and sentenced to five years’ imprisonment. Sec. 560.045. (Statutory references are to RSMo and V.A.M.S.) Defendant has appealed and claims error in overruling his motions for acquittal.

Defendant was represented on arraignment and at the trial by his own counsel but no brief has been filed here so we consider all assignments in the motion for new trial in accordance with criminal Rule 27.20. (See also Rule 28.02, V.A.M.R.) These assignments also claim error in giving two instructions offered by the state and in refusing an instruction offered by him. Defendant makes further claims of error in refusing to receive in evidence certain exhibits and in overruling his motion to allow the jury to view the premises involved.

Defendant’s claim of right to acquittal is that there was no substantial evidence “that the defendant was possessed of a criminal intent.” In his motion for acquittal, defendant’s allegations were that the evidence did not show “defendant entered an occupied dwelling with intent to commit a felony therein or to steal a thing of ’value”; or “to prove a forcible entry into an occupied dwelling.” The following statement of facts shown by the State’s evidence shows this claim is without merit. It was shown that Mrs. Gertrude Farrall lived alone in the downstairs section of a flat at 6143 Suburban Avenue in St. Louis, the upstairs being vacant; that she left on Saturday, November 7, 1964, for a visit of several days in south St. Louis; that she locked all the doors and windows, there being three rear first floor windows; that she was called by her sister on Tuesday, November 10th, and on returning found two of the three rear windows broken out, the rear door open and the house “topsy-turvy”, drawers opened and emptied, but was unable to determine whether anything was missing. Mrs. Farrall did not ’know defendant and saw him for the first time at the police station.

J. H. Clayburn, who lived in the second house east of the Farrall flat, testified that between noon and 1:00 P.M., on November 10th, defendant came to him on his front porch and asked if anyone was home in Mrs. Farrall’s house. Clayburn said he did not think so and also told defendant the house between was vacant. Clayburn went to his back porch and saw defendant go to the back of Mrs. Farrall’s flat, break a window and go in. He then called the police. About 20 minutes later two policemen came and he pointed to the house he had seen defendant enter. As the police went toward the house, Clayburn saw defendant jump out a back window and run toward the alley. One officer called for defendant to halt and when he did not shot. Clayburn positively identified defendant when the police brought him back after catching him and later that afternoon at the police station and also at the trial. The two policemen Werner and Roussin said they had a radio call and went to the Clayburn house. Clayburn pointed out the Farrall house and as they went to it they saw defendant jump out a back window, breaking the glass, and run toward the alley. Werner yelled for him to halt and shot when de did not, firing again when he saw him in the alley. He said defendant was only out of his sight once and then only about IS seconds, when he ran into a gangway, just before he was captured by Roussin and another officer at the other end of the gangway. Defendant had a shot wound in his right leg. Defendant tpld Werner, when he found no one at home “he went to get the stuff and take the stuff and junk it, find stuff in the house for junk to sell.”

As we said in State v. McBride, Mo.Sup., 366 S.W.2d 374, 377: “Where no stealing is shown, the intent with which the breaking and entry were made may and generally must be proved by circumstantial evidence. Oftentimes the circumstances under which the breaking and entry are shown to have been made, in and of themselves, warrant a finding of an intent to steal.” The circumstances here, including the ransacked condition of the rooms, were sufficient to show such intent. “In order to establish the requisite intent in the offense of second degree burglary it is not necessary that the act of stealing be completed after the breaking and entry.” State v. Smith, Mo.Sup., 357 S.W.2d 120, 123 and cases cited. We hold the court properly overruled the motions for acquittal.

After the State’s evidence, and most of defendant’s, had been heard, defendant’s counsel asked that the jury be permitted to view the premises, stating: “[T]here has been testimony here that there was no house between these two homes, and even this morning we have had difficulty in determining what is next door to his own house” (referring to witness Clayburn, who called the police). Defendant’s motion for new trial gave as a reason: “[TJhere was conflicting testimony on the part of the State’s witnesses as to whether or not the premises were abandoned as opposed to having been recently habitable or recently lived in.” However, Mrs. Farrall, who apparently owned both the house defendant entered and the house between it and the one in which Clayburn lived, testified as to the house entered: “It’s my home, and I live there.” She also said she had a bed in it and slept there before the day on which defendant entered. This was sufficient evidence to show this was not an abandoned building as defendant claimed. The matter of viewing the premises rests within the sound discretion of the court. State v. Hancock, 148 Mo. 488, 50 S.W. 112; see also State v. Wilson, 361 Mo. 78, 233 S.W.2d 686; State v. Varner, Mo.Sup., 329 S.W.2d 623, 633 ; 23 C.J.S. Criminal Law § 986, p. 989. In this case, there was also evidence of some change of condition of .the premises between the time of the breaking and the time of the trial. We hold there was no abuse of discretion in refusing defendant’s request to have the jury view the premises. Likewise and for the same reasons we hold there was no abuse of discretion in refusing to admit three photographs, taken during the trial, showing outside views of the house. Photographs showing the view Clayburn had from his back porch, offered by defendant, were admitted as relevant on the issue of what Clayburn could have seen defendant do.

As to defendant’s claim of error in giving Instructions 1 and 2, no specific grounds are stated, as required by Rule 27.-20 but only a general statement is made that the court erred in giving them. However, an instruction in substantially the same form as Instruction 1 herein (except as to the part applying to a dwelling house) was approved in State v. Smith, Mo.Sup., 342 S.W.2d 940, 942. See also State v. Papin Mo.Sup., 386 S.W.2d 355, 360, and cases cited; State v. Jones, Mo.Sup., 365 S.W.2d 508, 515. Instruction 2 told the jury that if they found defendant attempted to escape to avoid arrest, “this is a circumstance which you may take into consideration in determining his guilt or innocence.” Such instructions have often been approved. See Raymond on Instructions, Secs. 3531-3542. As to the refusal of defendant’s requested instruction, it applied to breaking into a building containing “goods, wares and merchandise,” the offense defined in Sec. 560.070, rather than breaking into a dwelling house which was the offense charged herein. Therefore, it was not error to refuse it.

We have examined the record as required by our Rules 28.02 and 28.08, V.A.M.R., and find it sufficient with respect to those matters therein specified. Previous felony convictions, sentences, imprisonment for these sentences and discharge after serving them were admitted by defendant’s counsel and affirmatively found by the court.

The judgment is affirmed.

All concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. John Leonard PUGHE, Appellant.
    No. 51510.
    Supreme Court of Missouri, Division No. 1.
    May 11, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied June 13, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Carl R. Gaertner, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Commodore M. Combs, Jr., Kansas City, for appellant.
   HOUSER, Commissioner.

John Leonard Pughe, convicted by a jury of robbery in the first degree, § 560.-120, V.A.M.S., and sentenced to 8 years imprisonment, has appealed from the judgment of conviction.

The first question is whether there was a fatal, material variance between the charge in the information that appellant took $17 from Gussie Goebel, “the money and personal property of said Gus-sie Goebel,” and the state’s proof that the $17 taken belonged to Western Union Telegraph Company. The robbery occurred at an office of the telegraph company. At the time of the robbery Gussie Goebel was an employee of the company, in sole charge of the office. The robber entered the office, handed Mrs. Goebel a note threatening to endanger her life by the use of “nitro” and demanding that she “hand over the cash.” He had an article in his hand which looked like a tube. Under this compulsion she opened the cash drawer and the robber took the company money therefrom and fled. It is immaterial to the validity of the information whether Mrs. Goebel was the owner or the legal custodian merely of the $17 taken in the robbery. State v. Huffman, Mo.Sup., 238 S.W. 430. The ownership of the property taken may be laid in the one in possession of the property at the time of the robbery, whether he be clerk, servant or other bailee. State v. Johnstone, Mo.Sup., 335 S.W.2d 199, 203. “The gravamen of the offense consists in the taking by violence, or by putting in fear, the money or property of another from one who was at the time in the lawful possession of the same. * * * The words of the statute, therefore, defining those from whom the unlawful taking of property shall constitute robbery, may be disregarded as words of description rather than of limitation. * * * ” McCarthy v. Eidson, Mo.Sup., 262 S.W.2d 52, 53, 54.

The next question is the legal sufficiency of the testimony given by Mrs. Goebel purporting to identify appellant as the culprit. The robber was in the telegraph office in the presence of Mrs. Goebel for a period of from two to four minutes, and was within two to three feet of Mrs. Goebel when he reached for the money. There is no evidence that he was masked. She had ample opportunity to observe him, and did observe many details, including the fact that he carried in his hand an article which was brown and looked like a tube. Mrs. Goebel gave the police a description of the man (five feet eleven inches in height, about 160 pounds in weight, wearing a blue shirt and dark trousers). She told the police that she would be able to identify him by his features and his height. Later Mrs. Goebel picked appellant out of a lineup of three men at the police station, after the three stepped forward one at a time and gave their names and addresses. She immediately identified appellant as the robber and signed a statement positively identifying him “by his physical build and speech.” She also saw him at the preliminary hearing. At the trial she pointed him out in the courtroom. She testified that she was “sure” he was the man; that she would know and would not forget anyone who came in and robbed and frightened her as badly as he did. She identified him not only by the means she used at the police station but also by “his facial features.” She had noticed “a peculiar kind of frown when he came into the office,” a frown which appellant had when he was in the lineup. Aside from the confession, in which appellant identified himself as the robber, the foregoing evidence was sufficient to submit to the jury the question of the identity of appellant as the robber. The accuracy and credibility of the testimony of Mrs. Goebel was for the jury. State v. Clark, Mo.Sup., 331 S.W.2d 588, 590 [3].

Appellant’s principal complaints are that the court erred in permitting the police officers to recite to the jury the incriminating oral admissions made by appellant and refer to his signed confession, and in failing to submit to the jury by appropriate instructions the question whether his confessions were given voluntarily.

Preliminary to the admission of the self-incriminating evidence the court held a hearing in the absence of the jury to determine whether the confessions should be admitted in evidence. At that hearing Detective Reed of the Kansas City Police Department testified as follows: On the night after the robbery Reed questioned appellant at police headquarters. Sergeant Schump, who was also on duty at the time, was in and out of the room from time to time, but Reed and appellant were alone in the questioning room most of the time. Reed started talking to appellant at 11:30 p. m. Appellant was in the room for three hours. Reed began questioning appellant with reference to an attempted burglary of the Jefferson Supermarket. After talking to him for fifteen minutes or so Reed started to prepare a typewritten statement with reference to the supermarket matter. At that time Reed informed appellant that he did not “have to make any kind of statement at all and that it was his right to consult with anyone he chose.” Reed also advised appellant of his right to counsel. Appellant did not at any time make a request to have counsel. Appellant told Reed that he did not want to “live like this — the way he had been living” and that he “wanted to get it off his chest.” Appellant was “very willing” to give Reed a statement and tell him “all about this and some other things.” After the first fifteen minutes of questioning about the supermarket matter, at about 11 :- 45 p. m., and before Reed had mentioned the robbery at Western Union, appellant volunteered the information that he had committed the robbery at Western Union. Reed inquired as to the details. Reed then went to the police records, pulled out the reports of the Western Union robbery, and checked the information appellant gave him with the information contained in the police reports. The details were identical. Reed then prepared a written statement with reference to the Western Union robbery. Before doing so Reed again advised appellant of his constitutional rights; told him that he did not have to make a statement at all in writing, and that he had a right to counsel. Reed asked him if he wanted to call anyone and he said “No,” that there was no one he wanted to call. At no time did Reed make any threat or any kind of a gesture toward appellant or have any bodily contact with him. After the written confession was signed and at about 2:3.0 a. m. appellant was conducted to his cell.

Officer Linhart of the police department testified at the hearing from which the jury was excluded that the day after appellant gave his written confession he interrogated appellant for possibly an hour, during which appellant “orally admitted the Western Union robbery.” It was a “voluntary admission.”

At that same hearing (outside the hearing of the jury) appellant testified that he was picked up for investigation and questioned; that when the questioning by Detective Reed began appellant asked Reed if he did not have any rights and if he could not call an attorney or someone to help him; that he was a stranger in town and would like to talk to someone. He said Reed answered that there was no one he could talk to; that he was a stranger in this town and had no rights. The questioning lasted for two or three hours, beginning late at night. Appellant testified that Reed kept questioning him and asked him to sign a “statement to the robbery” and told him he was going to make a statement “one way or the other”; that appellant told Reed he wasn’t going to sign anything; that he was not guilty; that finally at 2 a. m. Reed “got tired of questioning” him “and he hit [appellant] in the face with his open hand * * * with a pretty good force and” appellant “signed a statement when he drew back.” Appellant stated that he agreed to sign the statement because he “didn’t want to get beat up.” He swore that when he was arrested at 8 p. m. the previous night he was threatened, knocked down, kicked two or three times in the legs and back, and beaten by police officers and handcuffed. He said he later had brownish bruises on his side, right lower back and legs as a result.

At the conclusion of the hearing appellant’s counsel orally moved for the suppression of the statements made to the officers, That motion was overruled. The court stated that “observing the defendant and his demeanor * * * leaves no question in my mind whatsoever what the true facts were with respect to any voluntariness of any statement made by the defendant,” called the jury back, and permitted the state to proceed in the hearing of the jury to introduce in evidence the testimony of the officers with reference to the written and oral confessions of appellant. Officer Reed testified before the jury that while talking to appellant about another matter appellant volunteered the information that he had robbed the Western Union office, and recited the details of what appellant had told him about the commission of the Western Union robbery. He further testified that appellant signed a waiver of search and recounted how he searched appellant’s room and discovered a Schick razor wrapped in a piece of brown paper; that the interrogation commenced at 11:30 p. m. and lasted until 2:30 a. m.; that what appellant said was reduced to writing and signed by him; that before the questioning started at 11:30 p. m. appellant had been detained approximately an hour. The previous testimony of Reed that he informed appellant of his constitutional rights was not brought out before the jury. Officer Linhart testified before the jury that fifteen or twenty minutes after appellant was identified at the lineup (on the day after the written confession was signed) Linhart had an hour’s conversation with appellant in which the latter asked to make a long distance telephone call and stated that he would “tell everything.” The call was made, after which appellant orally admitted that he “did it.” Linhart testified that at that time he did not advise appellant that he had a right to remain silent and a right to counsel. Appellant did not take the stand and testify in the presence of the jury. Neither he nor any other witness gave any testimony before the jury that appellant had been coerced mentally or physically prior to making the confessions and defendant did not repeat before the jury the testimony given at the hearing before the judge that his constitutional rights were not accorded him.

On the question whether the court should have admitted the evidence of appellant’s oral confessions and the references to his written confession, appellant cites People v. Dorado, 40 Cal.Rptr. 264, 394 P.2d 952; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Greenwell v. United States, 119 U.S. App.D.C. 43, 336 F.2d 962; Lee v. United States, 5 Cir., 322 F.2d 770; Ashcraft v. State of Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192. Appellant contends that the officers should not have been permitted to testify concerning appellant’s oral and written confessions because (1) appellant was questioned for three hours without having been charged with a criminal offense, and (2) he was not accorded the assistance of counsel. We find no error on either ground.

There is no statute or common law rule prohibiting the holding of a person arrested for questioning for a period of three hours and the fact that he is so held, without any charge having been filed against him, does not in and of itself, as a matter of law, render inadmissible as involuntary a confession obtained during that time. Detention for considerably longer periods of time has been held insufficient to invalidate a confession. For instance, a prisoner’s confession is not rendered involuntary as a matter of law by the fact that a peace officer violates a statute by holding a person in excess of the time provided by law (twenty hours, § 544.170, V. A.M.S.) without charging him with a criminal offense. State v. Bridges, Mo.Sup., 349 S.W.2d 214 [3], and cases cited l. c. 218. See State v. Keeble, Mo.Sup., 399 S.W.2d 118 [13] and numerous cases cited l. c. 122, in which in proceedings under Criminal Rule 27.26, V.A.M.R., it has been held that judgments of conviction are not per se invalidated by the fact that a prisoner is held without bail, without an attorney, and without the use of a telephone, for over twenty hours, in violation of § 544.170 and Criminal Rule 29.05.

Nor does the fact that a person arrested for questioning does not have counsel at the police station render inadmissible the testimony of police officers testifying to incriminating statements made during interrogation. “We have never held that the lack of an attorney when a defendant is interrogated and a statement is taken renders the confession invalid per se.” State v. Davis, Mo.Sup., 400 S.W.2d 141, 149 [16], This is not a case where the prisoner was uninformed as to his right to consult with counsel and his right to remain silent, or in which there was no waiver of these rights, or in which mental or physical coercion was employed. This is a case similar in these respects to State v. Boykins, Mo.Sup., 399 S.W.2d 70. The record plainly shows that prior to the time he confessed his guilt appellant was informed of his right to remain silent and of his right to counsel and was given an opportunity to request counsel, but declined to avail himself of the right and opportunity; that no mental or physical coercion was employed, and that he confessed voluntarily during the course of an interrogation as to another matter. The trial judge disbelieved appellant’s testimony to the contrary, and on this review we reach the same conclusion. The record further shows that while the interrogation as to the attempted burglary at the supermarket was under way and before any mention was made of robbery at the Western Union office — after appellant had been advised of his right to make no statement and to consult with others, including counsel — appellant made no request for an opportunity to consult with counsel; chose not to remain silent but elected to talk freely, and to clear his conscience volunteered the information that he committed the Western Union robbery. The one factor which distinguishes this case from those cited by appellant: this appellant was effectively warned of his constitutional right to counsel and his right to remain silent and is shown to have competently and intelligently waived those rights. Ashcraft is not persuasive; the uncontradicted evidence there showed that he was held incommunicado for thirty-six hours without rest or sleep, subject to continuing interrogation under circumstances inherently coercive.

The next question is whether it was incumbent on the court to charge the jury by an appropriate instruction on the question of the voluntary or involuntary character of the confessions. It is urged that mental coercion should be found from the fact that appellant was questioned for three hours. The truth is that he confessed within fifteen minutes after the questioning began. We declare as a matter of law that questioning an arrested person for fifteen minutes under the conditions surrounding appellant does not amount to unduly prolonged detention constituting force and duress. See State v. Higdon, 356 Mo. 1058, 204 S.W.2d 754, where the holding of defendant for forty hours under similar conditions was sustained. In the case here for review there was no evidence before the fury of any physical or mental abuse of the appellant during the three-hour period. Appellant, however, apparently contends that in determining whether the jury should be instructed on the voluntary or involuntary character of the confession the trial court should take into consideration all of the evidence, both that given before the judge in the absence of the jury and that subsequently given before judge and jury. In support of this thesis appellant cites State v. Cochran, 356 Mo. 778, 203 S.W.2d 707, which in turn cites State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949. These cases do not so hold. They stand for the proposition that the appellate court should hold confessions inadmissible as a matter of law if upon consideration of all of the evidence in the transcript (both that given before the judge in the absence of the jury and that given before the judge and jury) it is conclusively shown that the confessions were involuntary. True enough, it is said in State v. Cochran, supra, 203 S.W.2d, l. c. 708, that “[i]f the evidence is conflicting * * * [on the question whether the confession was given voluntarily] it is a question for the jury.” (Our brackets.) This refers, necessarily, to the evidence before the fury. The evidence of physical and mental coercion was not before the jury. Appellant testified to physical and mental coercion before the judge in the private hearing, but the judge did not believe the testimony. Appellant, having failed to convince the trial judge of the truth of these charges, had another chance — an opportunity to present the same evidence to the jury and have the jury pass upon the question. The Missouri practice is described in State v. Washington, Mo.Sup., 399 S.W.2d 109 [12]. If appellant had testified to the same facts before the jury appellant would have been entitled to an appropriate instruction on the voluntary or involuntary character of the confession, upon his request, but he elected not to take the stand and deprived the jury of an opportunity to hear this evidence. Furthermore, appellant made no request of the court to instruct on voluntariness. The voluntariness of a confession is a collateral issue and an instruction on this subject is not required as a part of the law of the case. State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949, 957 [12]; State v. Higdon, 356 Mo. 1058, 204 S.W.2d 754, 755 [4]. Not having offered any evidence before the jury on the issue of voluntariness of the incriminating statements, and not having requested an instruction on the question, appellant is in no position to complain that the court failed to submit the issue to the jury. State v. Ramsey, supra, 197 S.W.2d, l. c. 957 [13]. In State v. Hershon, 329 Mo. 469, 485, 45 S.W.2d 60, 65 [1-4], defendant testified before the judge but outside the hearing of the jury to facts showing that he had been mistreated by the police, and denied making a written confession, but did not take the stand, and there was no such testimony before the jury. It was held that there was no necessity of instructing the jury to disregard the alleged confession if it was involuntary, the court stating, 45 S.W.2d, l. c. 65: “The court is not required, indeed it would not be permitted to predicate instructions upon testimony given in chambers in the absence of the jury at a hearing upon a preliminary question for the guidance of the court alone. Although defendant testified at the 'private hearing that he had been brutally treated at police headquarters and, in this testimony, denied that he made or signed the confession, neither he nor any one else so testified before the jury. In the circumstances the confession was prima facie voluntary.”

Finally, appellant makes the point that “[i]t was prejudicial error for the court to permit a single body sitting as a jury to pass upon both the issue of voluntariness without instruction and the guilt or innocence of the accused.” This is an attempt to invoke the rule of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, but we are not here presented with the question decided in that case for the reason that the issue of voluntariness was not submitted to or passed upon by the jury, and no evidence on the issue went to the jury in this case, as appellant concedes in his motion for new trial and brief. This point contradicts and is inconsistent with appellant’s other point, in which he complains of the failure of the court to instruct on the issue.

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

The judgment is affirmed.

WELBORN, C., not sitting.

HIGGINS, C., concurs.

PER CURIAM:

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

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    Arthur HINRICHS, a Minor, by Hans Hinrichs, His Father and Next Friend, Respondent, v. Albert YOUNG, Appellant.
    No. 51392.
    Supreme Court of Missouri, Division No. 1.
    June 13, 1966.

      Gray & Sommers, Charles E. Gray, St. Louis, for respondent.
    Derrick & Holderle, St. Louis, for appellant.
   HIGGINS, Commissioner.

Action for damages for personal injuries in which defendant appeals from verdict and judgment for plaintiff for $20,100.

The action arose from a collision on November 21, 1961, in St. Louis, Missouri, between a motor bicycle being operated southwardly on Lawrence Avenue by plaintiff and a school bus being operated east-wardly on Fiad Avenue by defendant. At their intersection Fiad Avenue is approximately 30 feet wide and Lawrence is 27 to 30 feet wide. The bus, a 1960 Model GMC, was 27 feet long and seven feet wide and in good condition. Upon arriving at the intersection the bus stopped with its front bumper -approximately three feet east of the west curb of Lawrence Avenue. While the bus was so stopped a laundry truck passed through the intersection northwardly on Lawrence. The bus then proceeded in low gear at what witness Joseph M. Hughes termed “walking speed, about three miles an hour.” Mr. Hughes, a bus driver for Bi-State Transit Authority, had stopped to the rear of the school bus. He testified that at the same time the bus started plaintiff’s bike entered the intersection going south on Lawrence, “ * * * and he was at a half left position like he was sliding. * * * He would be at a southeast position. He was in a slide — at an angle, dog fashion. * * * He stayed in a half left position most all the way — I mean, it was a slide into where — to the point of the contact with the bus. * * * As if he was trying to stop to avoid this.” The bus continued at three miles per hour and the vehicles collided at the center of the intersection. The bike struck the left side of the bus at a point behind the bus driver’s seat approximately 10 feet from the front of the bus and at a point about a foot above the bottom of the body of the bus. Mr. Hughes estimated the bike’s speed at seven to 10 miles per hour, and testified that the bus going three miles per hour could have been stopped safely in two and a half or three feet. The police officer testified that the bus traveled 87 feet 8 inches from the place where debris was found just east of the center of the intersection and that plaintiff was lying about 32 feet away from the debris. There were no skid marks.

According to defendant the accident occurred in daylight and the streets were dry. Although he did not see plaintiff, he could see about a block to his right and left from where he was stopped at the intersection. He placed his speed at approximately five miles per hour and when he felt the thud of impact he applied the brakes on his bus and “ * * * it stopped immediately.” He thereafter pulled out of the intersection to the place noted by the officer.

Plaintiff was 15 years of age when the collision occurred and he had no memory of the details of the collision. As stated in appellant’s brief, plaintiff received serious and permanent injuries to his body, and plaintiff had evidence to show brain damage, eye injury, and lacerations of the limbs requiring skin grafts and involving keloid scarring.

The case was submitted to the jury under the humanitarian doctrine by the use of MAI 17.14 which hypothesized failure to stop as negligence. Appellant says this was error because there was no evidence from which a jury could determine when and where plaintiff came into imminent peril (now known as immediate danger under MAI), nor of what action defendant thereafter could have taken to prevent the collision.

Appellant reminds that “[ujsually a humanitarian negligence case must fail when the plaintiff or his vehicle comes to an intersection last and runs into the side of the other vehicle,” Lotta v. Kansas City Public Service Co., 342 Mo. 743, 117 S.W.2d 296, 302[13]; that “[t]he first and basic fact of liability under the humanitarian doctrine is a position of imminent peril,” Lane v. Wilson, Mo.App., 390 S.W.2d 943, 947[3], Anderson v. Prugh, 364 Mo. 557, 264 S.W.2d 358, 364[8]; that “ ‘[t]he peril truly must be imminent * * *; it may not be remote, uncertain or contingent. A likelihood or bare possibility of injury is not sufficient,’” Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575, 583[13]; that “[defendant's duty does not arise 'before the plaintiff is actually in a position of imminent peril,’ ” and that defendant then “had the present ability with the means at hand to have averted the impending injury without injury to himself or others,” Davis v. St. Louis Public Service Co., Mo., 316 S.W.2d 494, 497[3][6]. He cautions also that even though plaintiff is entitled to the benefit of all favorable inferences warranted by the evidence, the evidence to support his submission must be substantial evidence, and a case which leaves one or more of the essential elements to speculation or conjecture is not for the jury. Moore v. Ervin, Mo., 374 S.W.2d 142, 149[3]; Lane v. Wilson, supra, l. c. 950[11] of 390 S.W.2d; Paydon v. Globus, Mo., 262 S.W.2d 601, 603[1]; Yarrington v. Lininger, Mo., 327 S.W.2d 104, 109[7].

Under the evidence the jury reasonably could have found that plaintiff was in or entering a position of immediate danger at the time the motorbike entered the intersection. At that time and place he was trying to stop, was sliding in a southeastwardly direction and was obviously out of control and unable to stop prior to collision with defendant’s bus in the center of the intersection. And such position of danger reasonably could have been found to have commenced when the bus moved forward from its stopped position. The front of the bus was approximately three feet east of the west curb line of Lawrence Avenue when it started forward, and Lawrence being 30 feet wide, gave defendant 12 feet in which to stop prior to the collision in the center of the street. According to Mr. Hughes the bus was traveling at three miles per hour and could have been stopped safely in two and a half or three feet; defendant stated his speed to be five miles per hour and that he stopped “immediately” after the collision, and judicial notice has been taken that a loaded vehicle traveling two to five miles an hour may be stopped “almost instantly.” Johnson v. Kansas City Public Service Co., 358 Mo. 253, 214 S.W.2d 5, 10[9]; Pettus v. Dudman, Mo.App., 389 S.W.2d 373, 375[6-8], Thus, the jury reasonably could have found also that defendant had the means by which to stop short of the center of the road and so to have avoided collision with plaintiff. Despite his statement that he looked and did not see plaintiff, the evidence shows that defendant, in his stopped position, had an unobstructed view in plaintiff’s direction for at least a block, in which case defendant “must be held to have seen what looking would have revealed,” Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548, 553[7], Frandeka v. St. Louis Public Service Co., Mo., 234 S.W.2d 540, 546[5], Hildreth v. Key, Mo.App., 341 S.W.2d 601, 606[5], which in this case was plaintiff out of control of his motorbike. Accordingly, it was proper for the jury to determine when and where plaintiff entered into immediate danger and whether defendant knew, or by using the highest degree of care could have known, of plaintiff’s immediate danger in sliding across the intersection out of control in time thereafter to have avoided the collision by stopping. Harris v. Rowden, Mo., 305 S.W.2d 25, 29[4]; Ukman v. Hoover Motor Express Co., Mo., 269 S.W.2d 35, 39[5]; Daniels v. Smith, Mo., 323 S.W.2d 705, 709, 710[4,5],

Appellant, relying upon Claridge v. Anzolone, 359 Mo. 65, 220 S.W.2d 33, 35[4], in which plaintiff’s danger zone was very narrow because he was fully aware of his predicament and admittedly able to extricate himself, and Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972, 976[5-8], in which plaintiff gave no indication that he was not going to cross in front of defendant, argues that plaintiff did not come into peril when he entered the intersection “for at that time he could have swerved either to the right or left and avoided the collision or could have speeded up and gone on through the intersection ahead of the bus or he could have stopped.” There are no transcript references to support this contention, and the evidence that plaintiff was sliding through the intersection at a 45° angle is contrary to any suggestion of control sufficient to enable him to stop, swerve, or accelerate in order to extricate himself from danger.

Appellant argues that plaintiff’s case must stand, if at all, on the testimony of witness Hughes, and that his testimony consists of conflicting statements which create a situation violative of the principle of law that where a party relies on the statement of a single witness to prove an issue and that witness’s testimony is contradictory with no explanation of the contradiction or other evidence pointing to the true version, the jury may accept neither version of it. Stephens v. Thompson, Mo., 293 S.W.2d 392, 394[1], quoting Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644. See also Corder v. Pruitt, Mo., 361 S.W.2d 659; Begley v. Connor, Mo., 361 S.W.2d 836, 839[2]. After testifying on direct, cross, redirect, and recross-examination that defendant was stopped with the front of his bus approximately three feet east of the west curb of Lawrence Avenue and that he proceeded at the same time plaintiff entered the intersection, he answered on further recross-examination that “the bus hadn’t quite maybe hit the center line of Lawrence yet, at the same time I seen the boy.” Appellant says this answer produced the conflict destructive of the witness’s testimony; however, upon further direct examination he stated that he meant to testify as before that he “saw the boy at about the same time the bus started up,” and upon still further recross-examination he clarified and explained his testimony stating, “At the same time I seen the boy was the same time that the bus had started to proceed from its stop at the cross walk. In other words, the bus started up and the boy was coming.” He continued upon yet further recross-examination with additional testimony consistent with the theory upon which plaintiff’s case stands: “Q (Mr. Derrick) All right. Where was the front of the bus when you first saw the boy? A Oh, that’s when the bus was still maybe three or four feet from the curb, the west curb of Lawrence.” Under these circumstances it is clear that the witness misunderstood the cross-examiner’s question in the single instance said to be contradictory because he immediately rehabilitated himself and continued to testify to facts consistent with his previous testimony supportive of plaintiff’s case. Such testimony sufficiently explained any contradiction so that any doubt of the credibility of the witness and weight of his testimony was for the jury to determine. Adelsberger v. Sheehy, supra, l. c. 647[7] of 59 S.W.2d.

Error is charged in the failure to strike the estimate by Mr. Hughes of the speed of the motorbike because he said on recross-examination that it was a guess.

Use of “guess” is not necessarily destructive of a witness’s testimony if it appears, for instance, from his whole testimony that the witness intended to express an opinion or judgment. Denney v. Spot Martin, Inc., Mo.App., 328 S.W.2d 399, 405[8, 9]; Leathers v. Sikeston Coca-Cola Bottling Co., Mo.App., 286 S.W.2d 393, 396[2-4]; Wood v. St. Louis Public Service Co., Mo., 228 S.W.2d 665, 667[4], 17 A.L.R.2d 868. And in this case the testimony in question could not be prejudicial to defendant because it has been demonstrated previously that the jury reasonably could have found plaintiff was in immediate danger when he entered the intersection at the time defendant’s bus started forward and that defendant could thereafter stop in time to avoid the collision. This was the submission of plaintiff’s case and his speed was not part of or material to the submission.

Appellant says that allowing Dr. Moore, on behalf of plaintiff, to testify from portions of an electroencephalogram prepared by another doctor erroneously invaded the province of the jury and permitted one expert to base his opinion on the opinion of another expert. He cites Parrott v. Kisco Boiler & Engineering Co., Mo.App., 332 S.W.2d 41, where one expert was asked to give an opinion on the correctness of another expert’s opinion; Hornberger v. St. Louis Public Service Co., Mo., 353 S.W.2d 635, holding it improper for one expert to base his opinion on the opinion of another unless it be in evidence and included as an assumption in a hypothetical question; Baumhoer v. McLaughlin, Mo.App., 205 S.W.2d 274, holding it objectionable for a doctor’s opinion to be based on another’s X-ray findings without viewing the X rays himself; Hayes v. Equitable Life Assurance Society, 235 Mo.App. 1261, 150 S.W.2d 1113, holding it error for physicians to express opinions on hospital records not in evidence.

The record does not support appellant’s charge and the situations in the above cases are thus not applicable. Dr. Moore testified that he examined plaintiff and sent him to Washington University for an electroencephalogram. The tracing was made at Dr. O’Leary’s Laboratory and portions of the film strip were mailed to Dr. Moore which became Exhibit 5 in evidence. He likened the strip to a representative heart tracing, admitted that doctors might differ in their readings, and gave his opinion that the strip in evidence was representative of the whole tracing. He read it as showing “mixed dysrhythmia with paroxysmal trends and a left temporal slowing.” There was another electroencephalogram in evidence which had been run at City Hospital, and he read it as showing “slow and fast dysrhythmia.” In addition, Dr. Moore made a physical examination of plaintiff in which he found brain damage, and the hypothetical question put to him resulting in his opinion as to injuries sustained made no reference to electroencephalograms. In such circumstances Dr. Moore was neither relying on another’s opinion nor on an electroencephalogram edited by another, and the vices suggested by appellant did not occur. The only use made of the tracings was that of a reading by the doctor which is akin to the more familiar practice of one doctor interpreting X rays taken by someone else. Under these circumstances there was no abuse of the court’s discretion in the admission of evidence. Chailland v. Smiley, Mo., 363 S.W.2d 619, 630[24], 5 A.L.R.3d 288; Snyder v. Jensen, Mo., 281 S.W.2d 802, 816[16].

The judgment is affirmed.

HOUSER, C., concurs.

WELBORN, C, not sitting.

PER CURIAM.

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

All concur.