author:
HOLMAN, Commissioner.
      HYDE, Judge

text:
    STATE of Missouri, Plaintiff-Respondent, v. Stanley Reid PENNICK, Defendant-Appellant.
    No. 49403.
    Supreme Court of Missouri, Division No. 1.
    Feb. 11, 1963.

      Errol Joyce, Brookfield, Jack C. Jones, ■Carrollton, for appellant.
    Thomas F. Eagleton, Atty. Gen., O. Hampton Stevens, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   HOLMAN, Commissioner.

Defendant was found guilty of manslaughter by culpable negligence in the death of Rachel Anderson and his punishment was fixed by the jury at two years’ imprisonment in the penitentiary. See §§ 559.070 and 559.140 (all statutory references are to RSMo 1959, V.A.M.S.). He has appealed from the ensuing judgment.

The evidence offered by the State supports the following statement of facts. On Sunday, April 3, 1960, John Anderson and his wife Rachel, went to the Gulley Bowling Lanes in Chillicothe, Missouri, where they remained until about midnight. They howled in a tournament that was in progress at that time. Upon leaving the bowling alley they proceeded south on Washington Street in their 1957 Chevrolet car. James Brown and Henry Keith, who had also been at the bowling alley, left at about the same time as the Andersons. Their automobile was also proceeding south on Washington about 50 feet behind the Anderson ■ car. These automobiles were traveling between 20 and 25 miles per hour. After going a short distance the cars were driven onto a viaduct 460 feet long which crosses over certain railroad tracks. Shortly after they drove onto the viaduct the occupants of the second car saw a northbound automobile entering the south end of the viaduct at a speed estimated at between 70 and 75 miles per hour. This automobile was later identified as a. 1957 Buick being driven by the defendant. When first seen by the witnesses it was on the wrong side of the road. Thereafter it swerved back to the right into the northbound lane and then swerved again to the left into the southbound lane and collided with great force with the Anderson Chevrolet. At the time of the collision the Anderson car had practically stopped and the car driven by Mr. Brown had completely stopped. Mr. Brown stopped his car because he had seen defendant’s car approaching in the wrong traffic lane.

The point of impact was 160 feet south of the north end of the viaduct. There were two traffic lanes across the viaduct, each 15 feet wide, and the impact occurred six or seven feet west of the center line of the viaduct. The speed limit at that point was 25 miles per hour, and the Buick made 124 feet of skid marks before reaching the point of impact. The defendant’s automobile had passed a northbound car 140 feet before it reached the viaduct and the driver of that automobile testified that defendant’s car was traveling at a speed of 70 miles per hour and was being driven in such a manner that his car was forced onto the east sidewalk.

Within a short time after the collision two ambulances arrived and Mr. and Mrs. Anderson were removed .from their car and taken to a Chillicothe hospital where, upon examination, Mrs. Anderson was found to be dead. In the opinion of the coroner (a physician) she died of a broken neck. It is stated in the briefs that John Anderson died the following day.

Two witnesses testified that they smelled alcohol on the defendant’s breath while he was still in his car at the scene of the collision, and two other witnesses testified that they smelled' alcohol on his breath shortly after he arrived at the hospital. The defendant did not testify.

Prior to the trial defendant filed a motion to quash which reads as follows: “Comes now the above named defendant and moves the court to quash the information herein and for ground thereof states: 1. That there is now pending in this court against this defendant two informations charging defendant with a commission of the same and identical offense, being cause No. 1273 and cause No. 1274. 2. That the information in cause 1274 was filed subsequent to the filing .of information in cause No. 1273. That the. second information charges the commission of the same offense as that described in the first information. That by reason of two informations pending at the same time for the same offense the first information is deemed to be suspended. Wherefore, premises considered, defendant prays the court to quash the information filed in this court, being No. 1273, and to abate all proceedings in the prosecution thereof.” That motion was obviously based upon S.C. Rule 24.14, V.A.M.R., which provides : “If there be at any time pending against the same defendant two indictments or two informations for the same offense, the -indictment first found, or the information first filed, shall be deemed to be suspended by the second indictment or information.” All that appears in the transcript concerning the hearing and disposition of the aforementioned motion is contained in the following recital: “Thereafter, on the Sth day of September, 1961, motion to quash was by the court overruled.”

The first point briefed by defendant is that the court erred in overruling his motion to quash the information herein. It is his contention that since the deaths of John and Rachel Anderson are alleged .to have resulted from a single unlawful act of culpable negligence in the operation of his. automobile only one offense could have been committed. Accordingly, he says that the information charging manslaughter in the death of Rachel, and the information charging manslaughter in the death of John, each charge the same offense and therefore the information in this case should' have been quashed since the subsequent filing of the information relating to John’s, death suspended the first information.

The question which defendant sought to-raise ordinarily arises upon a plea of' former jeopardy in a subsequent prosecution. An annotation in 172 A.L.R. 1053. contains an extensive discussion of this question. It is there stated that “there is a. conflict on the question of how many offenses are committed where two or more persons are injured or killed by a single criminal act in the operation of a -motor vehicle. The majority of courts hold that there are as many separate and distinct offenses as there are persons injured or killed by the unlawful act so that successive prosecutions may be instituted against the person who committed the unlawful act without violating the rule against double jeopardy.” But “* * * there is authority holding that where two or more sons are injured or killed by a single criminal act in the operation of a motor vehicle, only one offense is committed and an acquittal or conviction of an offense based on the injury or death of one of the persons will be a bar to a prosecution of offenses based on. the injury or death of the other persons.”" 172 A.L.R., 1. c. 1062, 1064.

However, we need not (and do not) decide the ultimate question defendant has-, presented. This for the reason that we have concluded that the trial court did not err in overruling the motion to quash because-no evidence was offered in support thereof.

It is elementary that the allegations-of a motion do not prove themselves. The-first proof of the filing of an information charging manslaughter in the death of John Anderson appears from a certified', copy thereof attached to the motion for-new trial. That proof should have been-, offered at the time the motion to quash was., heard. The trial court cannot be convicted, of error in overruling said motion upon proof first offered in connection with the motion for new trial.

We are mindful of the general rule that a court will take judicial notice of its own records. That rule dispenses with the necessity of identifying the ¡records of another case in the same court, but in a situation like the one before us it is necessary that the files and records be offered in evidence. The reason for that requirement appears in the following: “It is of course true that for certain purposes and within certain limits a court may take judicial notice of its own records in another and different case in the same court, yet where a showing of the existence of some such record or entry is essential to enable a party to a cause to bear his burden of proof upon some matter at issue therein, then the record itself must be introduced in evidence, .absent an admission of its contents by opposing counsel. Were the rule otherwise, .a cause might indeed be well and fairly enough disposed of in the trial court by the •mere assumption of the truth of facts which both court and counsel might privately know to exist, but obviously no record could be made and preserved so as to enable an appellate court to review a case which had been thus determined by the lower court’s having taken judicial notice of records of its own of which the appellate court could not possibly have or take a corresponding judicial notice. Daggs v. McDermott, 327 Mo. 73, 34 S.W.2d 46; Hume v. Wright (Mo.Sup.) 274 S.W. 741.” Richards Brick Co. v. Wright, 231 Mo.App. 946, 82 S.W.2d 274, 279. See also Randall v. St. Albans Farms, Inc., Mo. Sup., 345 S.W.2d 220, and cases cited therein.

While there are circumstances (not here present) under which a trial court may, of its own motion, take judicial notice ■of its records in another case, in the event it does so it should cause the record to disclose the precise matters it has so considered. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889.

As heretofore stated, we .rule that the court did not err in overruling the motion to quash. In that connection we observe that defendant will have another opportunity to raise the question he sought to present in that motion. It was stated in oral argument that the case involving the charge of manslaughter against defendant in the death of John Anderson had been set for trial in April 1963. If defendant desires to present the contention that only one offense was committed on the occasion heretofore described, he may do so by interposing a plea of double jeopardy in that case.

The next point briefed relates to the alleged error of the court in permitting testimony by Dr. Conrad that he smelled liquor on defendant’s breath. The doctor was on duty at the hospital when defendant was brought to the emergency room. This witness was also the county coroner. Over objection he testified to the following: “As coroner, when a person comes in that has been in an auto wreck, and they are in the emergency room, I smell their breath to see if they have liquor on it, and in Pen-nick’s case, he had liquor on his breath. * * * As a physician I examined him because he was hurt. His ribs 'were hurting him and his thumb was hurting him.” At the conclusion of the testimony of Dr. Conrad the court instructed the jury as follows: “The Court: Concerning the objections made on examination of the defendant at the hospital, the jury will disregard the doctor’s answers as to the' examination he made, the findings that he made at the hospital, the jury will disregard those findings that the doctor testified to. The objection to what he testified to as to the condition of the defendant at the hospital [on the] early morning of April 4th, you shall disregard that.”

The defendant contends that the testimony hereinbefore set out was inadmissible because it violated the physician-patient privilege as specified in § 491.060 (5). We have decided that we need not determine that contention on the merits because, even if we assume that the evidence was inadmissible, we are convinced that no prejudice to the defendant could have resulted therefrom. It should be noted that the witness did not testify that defendant was intoxicated but only that he smelled liquor on his breath. That testimony was merely cumulative as three other witnesses gave similar testimony and there was no testimony to the contrary. The testimony was of a nature that did not require the opinion of a medical expert and therefore we do not believe the jury would give any greater weight to such testimony when given by a physician than it would to similar testimony from a layman

The court instructed the jury to disregard the testimony of the doctor concerning his “findings” upon examination of defendant and “as to the condition of defendant at the hospital on the early morning of April 4.” While the court did not specifically refer to the testimony here complained of, we think the instruction was broad enough to include such testimony. If there was any possibility of prejudice resulting from the testimony in question, that instruction to the jury would tend to remove it. Certainly, when we consider both the fact that the testimony was cumulative and that the jury was instructed to disregard it we confidently conclude that no prejudice to the defendant could have resulted from its admission. See State v. Hinajosa, Mo. Sup., 242 S.W.2d 1 [15], and State v. Fulkerson, Mo.Sup., 331 S.W.2d 565 [1].

Defendant’s final contention is that “this case must be reversed because the state failed to prove the deceased, Rachel Anderson, met her death as a result of the alleged automobile accident or that she was in good health prior to the alleged accident.” He relies upon State v. Simler, 350 Mo. 646, 167 S.W.2d 376, 383, wherein it was said that “There was no direct proof whatever of the cause of deceased’s death. No evidence was introduced to show what injuries he sustained, or that they were fatal. * * * The criminal agency was proven — the automobile collision caused by culpable negligence. But was the death produced by it? We do not mean to say such facts cannot be proven circumstantially, when necessary.” The evidence in the case at bar was much more substantial than it was in the Simlar case. Here, there was evidence that deceased bowled during the time she spent at the bowling alley (which would indicate that she did not have a broken neck at that time) and that shortly after leaving the alley the car in which she was riding was involved in a violent collision; that she was promptly removed to a hospital where a physician pronounced her dead as the result of a broken neck. That was ample circumstantial evidence from which a jury could reasonably have found that her death resulted from injuries .received when defendant’s car violently collided with the Anderson car. State v. Feger, Mo.Sup., 340 S.W.2d 716. This point is ruled adversely to defendant.

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

The judgment is affirmed.

COIL, C., not participating.

HOUSER, C., concurs.

PER CURIAM.

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

DALTON, P. J., WESTHUES, J., and STONE, Special Judge, concur.

HYDE, J., concurs in separate opinion filed.

HOLLINGSWORTH, J., concurs, and concurs in separate concurring opinion of HYDE, J.

HYDE, Judge

(concurring).

I concur in the opinion of HOLMAN, C., herein and all the rulings made therein. However, a further reason for my concurrence is that it is my view that Supreme Court Rule 24.14 has no application whatever to the situation in this case. My conclusion is that if two persons are killed by the same criminal act, an indictment or information is suspended by a second indictment or information only if it charges the death of the same person. I consider that double jeopardy is a separate question having nothing whatever to do with the construction of this rule.

HOLLINGSWORTH, J., concurs.


source: Caselaw Access Project

author: HOLMAN, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Ellis Elsworth RICKARD, Appellant.
    No. 49272.
    Supreme Court of Missouri, Division No. 1.
    Feb. 11, 1963.
    R. M. Gifford, Green City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Phillip C. Houx, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   HOLMAN, Commissioner.

Defendant was found guilty of the offense of driving a motor vehicle while in an intoxicated condition and his punishment was fixed by the jury at two years’ imprisonment in the penitentiary. See §§ 564.440 and 564.460 (all statutory references are to RSMo 1959, V.A.M.S.). On December 13, 1961, his motion for a new trial was overruled and he was duly sentenced. Thereafter, on the same day, defendant filed a motion to vacate the judgment under the provisions of S.C. Rule 27-26, V.A.M.R., and said motion was, on that day, considered and overruled. Defendant filed a notice of appeal in which he appealed “from the judgment of the court entered in said cause on the 13th day of December, 1961.” It is apparent from his brief that defendant intended to appeal from both' of the judgments entered on that day. For the purposes of this opinion we will assume (but do not decide) that the notice of appeal was sufficient to constitute an appeal from both judgments. The points raised upon this appeal are such that a brief statement of facts will suffice.

For several hours prior to his arrest defendant was at a tavern in Millard, a small town located on U. S. Highway 63, a few miles south' of Kirksville, Missouri. At about 1:30 a. m. on June 12, 1961, defendant left the tavern and drove his automobile northwardly on Highway 63. A short time later he passed a highway patrol car parked by the side of the highway. The trooper followed defendant’s car for a short distance and observed that it was twice driven onto the right shoulder and then back across the highway to the left of the center line thereof. The trooper stopped defendant’s vehicle and placed defendant under arrest. He testified that defendant “had some difficulty in walking back to the patrol car, in that he stumbled around somewhat, — weaved. Nearly fell down at one time, and was able to control himself by putting his left hand upon the rear fender of his car,” and that he talked in a “slurred-type manner,” much different than his manner of speech as noted on later occasions. Other witnesses who saw defendant shortly thereafter testified (as did the trooper) that his breath smelled strongly of intoxicants and that he had difficulty in keeping his balance.

When defendant appeared in circuit court for arraignment on September 6, 1961, without counsel, the following occurred: “The court informed the defendant of the right to counsel and explained wherein the exercise of said right might be of benefit to defendant. The court offers to appoint counsel. Whereupon defendant says he has money to employ an attorney but does not want an attorney. * * * [A]nd defendant is formally arraigned and enters a plea of not guilty.” On November 6, 1961, defendant appeared for trial and the following proceedings appear in the transcript : “The Court (to the defendant): Mr. Rickard, do you have an attorney? The Defendant: No, I don’t have. The Court: You don’t have an attorney. Do you have money to employ an attorney? Do you want an attorney ? The Defendant: Well, I’m not ready to go to trial. The Court: Well, we are going to trial. If you want an attorney, I will appoint one for you. * * * The Court: You say you don’t have an attorney and you don’t have money to employ an attorney, is that right? The Defendant: Well, yes, I actually have the money to employ an attorney. The Court: Well, why didn’t you have an attorney then? The Defendant: Well, I don’t really think that I need one in this case. The Court: Well, I’ll appoint an attorney for you if you want one. The Defendant: Well, really, I would like to have the case continued until we get the — The Court (interrupting): I’m not talking about that. I’m talking about a lawyer. Do you want me to appoint an attorney for you? The Defendant: No, I don’t believe I do, your Honor.”

Defendant proceeded to represent himself in the trial of the case. For reasons that will hereinafter appear we will briefly discuss the manner in which he conducted his defense. He made a concise suitable opening statement, cross-examined two of the four witnesses offered by the State, called and examined 14 witnesses in his own behalf, made a number of objections to certain testimony, and made an argument to the jury. It is apparent from the transcript that defendant has an adequate vocabulary and has considerable ability (for a layman) in phrasing questions. Some of his witnesses gave testimony which tended to prove that defendant was not intoxicated a short time before he left the tavern. In two instances, however, he made tactical errors of judgment in calling witnesses from whom testimony was elicited on cross-examination which was very damaging to defendant. Also, the cross-examination of a character witness offered by defendant tended to indicate that he may have been convicted of several prior offenses in other states. If such is true it may account for the fact that defendant failed to testify in his own defense. Although defendant’s age does not appear, it is reasonable to conclude from the testimony that he was mature.

After the trial was concluded defendant employed an attorney who prepared and filed a motion for new trial. On the day said motion was overruled and defendant was sentenced, defendant, as heretofore indicated, filed a motion to vacate the judgment under S.C. Rule 27.26, V.A.M.R., which was based upon the following allegations: “II. That the failure of the trial court to appoint counsel for the defendant resulted in a denial of due process of law and violative of Amendment XIV to the United States Constitution. III. That the defendant was incapable of comprehending the nature of the charge made against him, was wholly unfamiliar with courtroom procedure, and was therefore incompetent either to waive his right to counsel or to present his own defense.” Said motion was overruled on the day it was filed.

Upon this appeal it is contended that the court should have granted defendant a new trial because the trial proceedings, known to the court, showed that he lacked the capacity to present a defense to the charge. In support of that contention defendant has cited Edwards v. Nash, Mo.App., 303 S.W.2d 211, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 461, and Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647. In this connection we think it is apropos to observe that no layman would likely be able to defend a criminal case with the same degree of skill that is possessed by a lawyer who has spent years in study and experience in order to prepare himself for that type of endeavor. If due process requires that a defendant be skillfully defended, then, for all practical purposes, a trial court would be required to force appointed counsel upon every unrepresented defendant, even though he may have stated that he did not desire an attorney. That such is not required by the Fourteenth Amendment to the Constitution of the United States is apparent from the fact that it has long been the established rule that a defendant, under appropriate circumstances, may waive his right to -be represented by counsel

The cases above cited all involve defendants who did not have the money to employ counsel or did not know of their right to have counsel. The case before us involves an entirely different situation. In this case the defendant advised the court on two occasions that he had funds to employ an attorney but did not want one. The court nevertheless offered to appoint counsel, which offer was rejected by defendant. That was more than was required by § 545.820, which provides: “If any person about to be arraigned upon an indictment for a felony be without counsel to conduct his defense, and be unable to employ any, it shall be the duty of the court to assign him counsel, at his request, * *

The facts and circumstances in the case at bar are very similar to those appearing in State v. Weston, Mo.Sup., 202 S.W.2d 50, 52, wherein this court, in disposing of a similar contention, stated that “Certainly, in these circumstances, it cannot be said that the appellant was unjustly deprived of his right to counsel, that he was not apprised of his rights in every respect or that his rights, constitutional or otherwise, were infringed in any manner. Under the Williams [Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398] and Tomkins [Tompkins v. Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407] cases there is no duty upon the court to appoint counsel for one able to employ a lawyer of his own choosing. Mo. R.S.A. §. 4003; State v. Medley, 353 Mo. 925, 185 S.W.2d 633; Mackey v. Kaiser, Mo.Sup., 187 S.W.2d 198. The mere fact that the appellant represented himself, though clumsily, does not deprive him of due process. Const. Mo., Art. I, Sec. 18, Mo. R.S.A.; Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. Nor does it necessarily mean that he did not have a fair and impartial trial. State v. Terry, 201 Mo. 697, 100 S.W. 432; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. Upon this record the appellant’s assignments of error in these respects are not well taken.”

In this case the only possible circumstance under which it might be said that defendant was not accorded his constitutional right to counsel would be in the event it appeared that by reason of age, ignorance, or mental incapacity defendant was not competent to make an intelligent decision as to his need for counsel. But such is not the case here. This defendant was at liberty on bond for several months before his trial and had the opportunity to consult with family, friends, or others during that period. It is apparent from the contents of the transcript that he is mature and of at least average intelligence. In this situation defendant was properly permitted to make his own determination as to whether he desired to be represented by an attorney and the court did not err in failing to appoint counsel for him and did not err in failing to grant him a new trial because he was not represented by counsel at the trial.

The remaining point briefed by defendant is that the court erred “in overruling the motion of defendant to vacate judgment, the record of trial proceedings conclusively demonstrating the defendant’s lack of competency to waive the right to assistance of counsel and thereby depriving him of due process.” Essentially, this point involves the same questions as the contention we have heretofore discussed and our ruling thereon is decisive of the present contention. While we need not (and do not) decide the question, we observe that the trial court would appear to have been warranted in overruling the motion to vacate because it was premature. We doubt that a defendant should be permitted to- pursue the remedy provided by S.G Rule 27.26, V.A.M.R., simultaneously with the prosecution of his appeal m the original case. The cases construing the similar federal statute (28 U.S.C.A. § 2255) indicate that such is not the proper procedure. See Bilderback v. United States, D.C., 159 F.Supp. 713, and cases cited therein.

As indicated, we rule that the court did not err in overruling defendant’s motion to vacate.

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

The judgment is affirmed.

HOUSER, G, concurs.

COIL, C., not participating.

PER CURIAM.

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

All of the Judges of the Division and HUNTER, Special Judge, concur.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Floyd Delorace POPE, Appellant.
    No. 49439.
    Supreme Court of Missouri, Division No. 2.
    Feb. 11, 1963.

      No appearance for appellant.
    Thomas F. Eagleton, Atty. Gen., Lynn B. Nelson, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Presiding Judge.

Defendant was tried on an amended information for first degree robbery and found guilty by a jury. The court found, apart from the jury, § 556.280, that he had been convicted, sentenced and imprisoned on four charges of robbery in the State of Illinois, the sentences having run concurrently. Thereupon, after considering and overruling a motion for new trial, the court sentenced defendant to a term of fifteen years in the penitentiary. Since no brief is filed here, we consider such assignments of the motion for new trial as are sufficient, and those parts of the record required by Criminal Rule 28.02, V.A.M.R.

One such assignment raises the sufficiency of the evidence to sustain a conviction, hence we state the facts. In view of the verdict, we state them favorably to the State. Edward Dugan, a truck driver on local runs in St. Louis, had gotten off work at about 9:30 p. m. on December 13, 1961; thereafter he visited a “few bars” drinking beer, leaving the last one at some time around 12:30. As he drove along Washington Avenue on his way home (apparently in the 4400 block) he felt, as he stated, a need to “relieve” himself, so he turned into a dead end alley about 75 feet in length; he drove along this for about 50 feet, and turned his car to the left into a vacant lot or yard, so that he might back out when his mission was concluded. His left door glass was down; just as he was starting to get out of his car, a man appeared on his left, put his hand on his shoulder and asked if he had identification; this man also asked what he was doing there. Dugan answered the latter inquiry very directly; following a few further remarks of no particular consequence, Dugan took out his wallet to show his identification. At this point the man (later identified as this defendant) reached for Dugan’s wallet and he, Dugan, threw it on the floor, supposedly under the front seat. Thereupon the man opened the door and got partially into the car (or leaned in over Dugan) “and was wrestling” with Dugan, obviously for the possession of the wallet; this man was then more or less on top of Dugan. At about that stage of the proceedings “another colored fellow” walked up and when Dugan saw him, he (Dugan) “just quit fighting * * * just gave up and let him take the wallet and money.” The entire context indicates that the first man, the one who was “wrestling,” was the one who took the wallet; in fact, Dugan testified directly that this defendant was the one who had his wallet, and that he saw it in his hand. The other man, after the first one had gotten the wallet, “stood there and hit me about five times in the forehead” with his “hand and knuckles.” Money in an amount between $120 and $130 was taken from the wallet which was then thrown back into the car. The man who got the wallet was larger than Dugan. The two men then conversed briefly and told Dugan to “get the hell out of there” and not to come back. At some point in this sequence of events, Du-gan had seen a woman standing about 30 feet away beside a building. Dugan testified that he got a good look at defendant’s face as the latter stood outside the car after the robbery, that he was not masked and that there were lights in the area, possibly surrounding street lights; also that he noted that this man was wearing an earring in his left ear. Dugan, immediately thereafter, drove until he found a police car in the neighborhood and returned to the scene with the officers; he testified that he was not familiar with the neighborhood. They found no one upon their return. One of the officers testified that there were “floodlights” in the rear of at least one building at the scene, and he thought also on others.

Defendant was arrested, along with two’ women, in front of 4458 Washington, a hotel and cocktail lounge, about 2:00 a. m-on December 17, 1961; this was approximately three days after the robbery. He was not then arrested for this robbery, but. the arresting officers knew of it. One officer testified that they booked and held the three “for investigation suspected of drug addiction.” One of these officers had previously seen defendant at least twice; at the time of the arrest the women with defendant were trying to stop passing cars. When arrested, the defendant was wearing an earring “with a white stone” in his left ear lobe. A little later Dugan viewed defendant in the “line-up,” and identified him; he testified: that he recognized the earring at the station, but that he also identified defendant by his face, his mustache, and his voice, — the identity not depending “entirely” upon the earring. Incidentally, the earring was identified at the trial and received as a State’s exhibit.

The sole evidence offered on the merits by defendant was the testimony of Dugan at defendant’s preliminary hearing. This was read from the reporter’s notes. The differences shown were rather immaterial. Some reference was made there to a knife, apparently arising first in an answer of Dugan; he thus testified: “I don’t know if he had a knife * * * ”; he then answered in the negative when asked directly whether defendant had a knife; he also answered in the negative when asked whether defendant got “in your automobile.” Naturally, there are minor differences in details and phraseology when that testimony is compared with the testimony at the trial. All of this was for the jury and concerned merely the weight of the State’s evidence.

The trial court did not err in denying defendant’s motions for acquittal. The chief issue of substance was the identification of the defendant; Dugan did identify him directly and without equivocation, and that issue was resolved; the credibility of this witness was solely for the jury. The evidence supplied every necessary element of first degree robbery. Section 560.120, RSMo 1959, V.A.M.S. (To which revision all statutory references will apply.) It was ample to show both “violence” and a “putting * * * in fear,” whereas either was sufficient. State v. Van Horn, Mo., 288 S.W.2d 919, 921. As to the requirement of violence, it was said in State v. Spivey, Mo., 204 S.W. 259, 261: “Snatching a valuable article from another is always denominated robbery where any force is exercised either to overcome the resistance of the person robbed or in detaching the article taken where it is fastened in some way to the clothing or person of the one robbed.” See also State v. Whitley, 327 Mo. 226, 36 S.W.2d 937.

Defendant has assigned error in the refusal of his offered instructions numbered 1, 2, 3 and 4; these assignments were made in separate paragraphs of the motion, but each stated in identical language that error was committed for the reason that the respective instruction “is a fair and proper declaration of the law covered by said instruction.” Missouri has long followed the precepts of our § 547.030 and of Criminal Rule 27.20 requiring that the grounds assigned for the granting of a new trial shall be stated “in detail and with particularity.” Our cases have uniformly construed this to mean, as applied to the giving and refusal of criminal instructions, that the assignment must point out the re-a-son why the action was erroneous. State v. Grubbs, 358 Mo. 323, 214 S.W.2d 435, 437, and cases cited; State v. Tebbe, Mo.App., 249 S.W.2d 172; State v. Thompson, Mo., 29 S.W.2d 67, 70; State v. Shuls, 329 Mo. 245, 44 S.W.2d 94. In several recent cases where assignments on the refusal of one or more instructions had certainly been no more vague or general than those now under consideration, and probably less so, our court held the assignments to be insufficient. State v. Baker, Mo., 293 S.W.2d 900, 906; State v. Harris, Mo., 351 S.W.2d 713, 716; State v. Turner, Mo., 320 S.W.2d 579, 586; State v. Linders, Mo., 224 S.W.2d 386, 390; State v. Miller, 357 Mo. 353, 208 S.W.2d 194, 201. In State v. Harris, supra, the court said, at loc. cit. 716: “ * * * his assignment in the motion that the court erred in refusing instruction A (also relating to the testimony of an accomplice) ‘because it fairly and fully declared the law in said cause’ is quite indefinite and does not state a ground or cause for a new trial (Sup. Ct.Rule 27.20, V.A.M.R.; State v. Johnson, (Mo.) 293 S.W.2d 907), hence the giving and refusal of these two instructions is not subject to review.” It is entirely obvious that the logic of and the reason for this rule,, as applied to refused instructions, lies in the thought that a defendant should be required to specify in some detail why the court’s given instructions were deficient or inadequate, why a further instruction or instructions upon a specific subject were needed, and how defendant’s proffered instructions would correct the supposed deficiencies without mere repetition. See, generally, State v. Baker, supra, 293 S.W.2d loc. cit. 906. Defendant’s sole assignment of inadequacy here concerned given Instruction No. 4, and as demonstrated, no reason has been stated to show why its claimed defects would have been cured by any of defendant’s proffered instructions.

Under these circumstances we do not consider defendant’s Instructions numbered 1, 2, 3 or 4, or their refusal. Such rules of practice are of little value if continuously disregarded, not only by counsel but also by the courts in criticizing the violation but proceeding nevertheless to decide the merits. The violation here is clear.

The next two assignments will be considered together; both involve the use of the somewhat antiquated term “force and arms.” One assignment states that it was erroneous to use this term in given Instruction No. 3, because such words were not contained in the information. The very simple answer to this assignment is that these specific words mere contained in the information upon which defendant was tried (page 5, original transcript). The assignment may have been made inadvertently. The next assignment is that the court erroneously included this term in its Instruction No. 3, whereas the evidence of the State showed “that no arms were in fact used * * Perhaps counsel has misapprehended the real meaning of the term. In Black’s Law Dictionary, Fourth Ed., at p. 774, it is defined as follows: “FORCE AND ARMS. A phrase used in declarations of trespass and in indictments, hut now unnecessary in declarations, to denote that the act complained of was done with violence. 2 Chit.PI. 846, 850.” We must concede that the jury would not have had ready reference to Mr. Black’s definition. We look, however, to the manner of the use of this phrase in the instruction, and we quote it in part: “If you find and believe from the evidence, beyond a reasonable doubt, that at the City of St. Louis and State of Missouri, on or about the 14th day of December, 1961, at the city of St. Louis aforesaid, the defendant, with force and arms, in and upon one Edward Dugan feloniously did make an assault, if you so find; and the said Edvard Dugan in fear of an immediate injury to his person, then and there feloniously did put; and by force and violence to his person one hundred twenty dollars, lawful money of the United States of the value of one hundred twenty dollars; all of the money and property of the said Edward Dugan from the person and in the presence, and against the will of the said Edward Dugan then and there, with force and violence as aforesaid, feloniously and violently did rob, steal, take and carry away, * * It is immediately obvious that the term was used only in a preliminary and more or less incidental way; associated with the hypothesis of the actual robbing are the terms “in fear of an immediate injury to his person” and “by force and violence,” these being used in the conjunctive, which was an unnecessary burden under the statute. The term “force and arms” is wholly foreign to our statutory definition of armed robbery, i. e., “robbery * * * by means of a dangerous and deadly weapon * * Section 560.135. In State v. Perry, Mo., 233 S.W.2d 717, where a similar preliminary phrase was used in an information coupled with subsequent specific allegations of the use of a pistol, the court said, loc. cit. 719: “The allegation as to ‘an assault with a dangerous and deadly weapon, towit, a pistol, loaded with gunpowder and leaden balls’ invoked the more severe penalty prescribed by the first provision of Sec. 4453, R.S.1939, Mo.R.S.A. State v. Vigus, Mo.Sup., 66 S.W.2d 854, 857.” This would seem to represent a typical disregard of the phrase “force and arms.” The phrase is simply superfluous and a meaningless bit of antiquity. Little, if any, effect appears ever to have been given to these words in our criminal jurisprudence, although their occasional use indicates the need for an overhauling of our ancient forms of indictment and information (and the same may be said of other wording in this information). We know of no Missouri case in which a defendant has been charged with or convicted of the offense of robbery with a dangerous and deadly weapon without allegation or evidence of the possession or use of a designated weapon, or upon a charge stated in the words of § 560.135. In any event, the element of a dangerous and deadly weapon goes merely to the penalty, State v. Vigus, Mo., 66 S.W.2d 854; it is-not a charge of a separate offense, as such. Section 560.135. The entire matter of punishment here was for the court under § 556.280, and the jury had nothing to do with it. The sole question before us is whether the use of this phrase may reasonably be held to have prejudiced the jury against defendant on the question of his guilt. Our conclusion is that it did not. While the jury probably could not have known its technical meaning, essentially it meant nothing to them. If the jury thought that the instruction required the actual use of “arms” (in the sense of a weapon), then this merely imposed an additional burden upon the State, which it had foolishly assumed. Also, the very fact that the court thus submitted the guilt of the defendant to the consideration of the jury, when there was no evidence whatever to show the use of any weapon, should certainly have been sufficient to cause any intelligent jury to disregard the phrase. The assignment is denied. The information here was merely a charge of first degree robbery and defendant was convicted of that. The punishment imposed was well within the limits prescribed for that offense. Section 560.135.

The sole remaining assignment was that Instruction No. 4 did not properly declare the jury’s duty to weigh the evidence because: it was too general, it imposed no limitation upon the “range of the jury,” it was incomplete, and it did not properly caution the jury that it could not assume any fact necessary to conviction. The instruction was very short, in words as follows: “The jury is further instructed that the Court does not mean for you to assume as true or established any of the matters mentioned or referred to in the instructions, but leaves you to determine from the evidence whether or not such matters have been established as facts by the evidence.” This was merely a cautionary instruction, there was no error in it, and it went as far as the court could consistently go on the subject. Also, it did the very things which defendant claims it did not do. The substantive issues had been fully covered in other instructions. This assignment is denied.

We mention in passing that defendant has ■recently filed here, pro se, motions seeking to “withdraw” his appeal for the reasons: that his attorney did not brief the appeal, -that the motion for a new trial “is not likely -to be sufficient to warrant a reversal,” and that he is now in possession of evidence which would prove perjury of the State’s witnesses. In the first of these motions he asked that “his appeal be temporarily transferred back to the trial court * * whereas in the latter he apparently has in mind proceedings under Criminal Rule 27.-26. These motions were overruled. Defendant had, in part at least, apparently overlooked the fact that a dismissal of his appeal would totally reinstate the judgment and sentence. We have preferred to proceed in the regular course to examine the alleged errors raised in his motion for new trial.

Finding no prejudicial error in any matters properly raised in the motion for new trial, and finding also no error in those matters which we are required to examine under Rule 28.02, the judgment is affirmed.

All of the Judges concur.


author: STOCKARD, Commissioner

text:
    STATE of Missouri, Respondent, v. Raymond Joseph BOOTHE, Appellant.
    No. 49148.
    Supreme Court of Missouri, Division No. 2.
    Feb. 11, 1963.

      R. B. Kirwan, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Martin M. Lipsitz, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   STOCKARD, Commissioner

Defendant has appealed from a judgment whereby he was sentenced to imprisonment for four years for burglary in the second degree. The case was tried before the court without a jury by express agreement of defendant. The “one complaint” of defendant on this appeal is that “there is no evidence that connects him with this burglary.” Defendant did not offer any evidence. We shall set forth the evidence of the State in considerable detail.

At 6:05 o’clock of the evening of January 31, 1961, Earl Barnhart, the general manager of the Clark Retread Service at Warrensburg, Missouri, closed the place of business, and in doing so checked the rear and west sides of the building. About 8:05 o’clock that evening Leonard Medlin, a master sergeant at a nearby Air Force Base, who previously had worked part time at-Clarks, arrived at the shop to work on a radio. Through a window he saw a man in the building, later identified as James Harley Higdon, standing under a light where “they normally parked trucks at night.” When Higdon saw Sergeant Medlin he yelled “Oh” and then “ran and scrambled through the rear window in the sliding door” on the south side of the building. Sergeant Medlin crossed the street to a service station and called the police. He then saw Higdon and another man, identified as defendant, come out of an alley from behind Schein Truck Lines’ Warehouse, which was the building east of the Clark building, and walk to a 1951 Chrysler automobile and drive away. The Chrysler was parked “not more than five feet” from, and “almost in front of the west door,” of the building. Sergeant Medlin followed the Chrysler a short distance, and observed its license number which he gave to the police, and a short time later a patrolman stopped and arrested Higdon and defendant a few miles south of Warrensburg while in a 1951 Chrysler which had the same license number as that reported by Sergeant Medlin.

In the trial of the case several photographs of the building occupied by Clark Retread Service were admitted in evidence, and the witnesses, to a great extent, testified in relation to these photographs which have not been filed with this court as a part of the transcript. This has resulted in some difficulty in determining precisely the location of the doors in the building and their relation to certain footprints found in mud near the building. The following is what we gather from the testimony.

When Earl Barnhart and the police offi■cers arrived it was discovered that in the front or west door the window pane next to the door latch had been broken out. The “latch on the door was open,” but in order to open the door a key was necessary and apparently this door had not been opened. “Adjacent to and west” of this door there were two sets of freshly made foot prints in some soft mud, and it appeared that “someone had approached the door, stepped ■down and gone to the south around the building.” On the south side of the building, a window had been broken out of a large sliding door, and it was out of this window that Sergeant Medlin saw Higdon leave the building. The police took samples of the mud “from the edge of the foot prints” and also took samples of the glass from the two doors. When Higdon •and appellant were arrested their shoes were muddy. All the above mentioned samples and the shoes of Higdon and defendant were sent to the laboratory of the Missouri State Highway Patrol where they were examined by a qualified chemist and laboratory technician. Gravitation and density tests made of the mud samples ■from the edge of the footprints and of mud samples taken from the shoes of defendant and Higdon revealed that the samples were “basically the same.” In addition, in the mud samples taken from the shoes of Hig-don and defendant there was “some glass” which “by general appearance” looked to be the same as the glass samples taken from the area of the door. However, the technician could not say “without any doubt” that the mud on defendant’s shoes and the mud taken from the footprints were “identically the same,” or that the glass in the mud on the shoes was “identical with the glass samples found at the door.”

The evidence in this case clearly authorized a finding that Higdon was guilty of burglary in the second degree. As to the defendant the evidence is wholly circumstantial. There is no evidence from which it may be inferred that he actually broke into or entered the building. However, if he aided and abetted Higdon in the burglary defendant also was guilty of burglary. State v. Whitaker, Mo., 275 S.W.2d 316 [12]; State v. Massey, 358 Mo. 1108, 219 S.W.2d 326. It was not necessary that defendant actually commit the act of breaking or that he actually enter the building. State v. Whitaker, supra [12]; State v. Wall, 339 Mo. 111, 96 S.W.2d 36 [5]. When the evidence of the defendant’s participation in the offense charged is circumstantial, as in this case, “ ‘the facts and circumstances relied upon by the State to establish guilt must not only be consistent with each other, and with the hypothesis of defendant’s guilt, but they must also be inconsistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to guilt as to exclude every reasonable hypothesis of innocence,’ ” State v. Burton, Mo., 357 S.W.2d 927 [1], and in determining the sufficiency of the evidence to support the verdict, “all of the substantial evidence offered by the State is taken as true, together with all reasonable inferences to be drawn therefrom, and by substantial evidence is meant ‘evidence from which the triers of the fact reasonably could find the issue in harmony therewith.’ ” State v. Whitaker, supra 275 S.W.2d at p. 319 [10-11], When analyzed according to the above rules, the evidence reveals tire following. A burglary was in fact committed, and Higdon was at least one of the participants. In the commission of the burglary he and another person went to the front or west door of the building and broke out the glass and apparently effected an entry because the latch on the inside had been opened. The evidence authorizes a finding that this second person was the defendant because there were two sets of footprints in the mud in the area of the door where the glass was broken, and when apprehended a short time later defendant had mud on his shoes “basically the same” as that in which the footprints were made, and more important, the mud on his shoes contained glass which appeared to be the same as the glass broken from the door. In addition, Higdon and defendant went to one door and apparently were unsuccessful in opening it, and then, as the footprints in the mud indicated, both started toward the back door where an entry was made by Higdon. Upon discovery, Higdon and defendant drove away together in an automobile. This clearly authorizes a finding that defendant and Higdon were working together from the time they approached the front or west door until they drove away in the automobile. It was during this time that two acts of breaking and entering were in fact committed.

When thus analyzed, every act of defendant inferred from the circumstances is consistent with the others, and all are consistent with the hypothesis of his guilt. Defendant argues that they are not inconsistent with his innocence, and he asserts, in effect, that defendant may have come upon the scene at the opportune time, or perhaps inopportune time, to be offered and to accept a ride in Higdon’s automobile after Higdon had been discovered and was leaving the scene of the burglary. It is true that the circumstances must exclude every reasonable hypothesis of innocence, State v. Burton, supra, but this does not mean that they must exclude every unreasonable hypothesis. This hypothesis proposed by defendant ignores his presence at the front or west door as evidenced by the footprints, and the mud and glass on his shoes, and is premised on the unreasonable hypothesis that at nighttime the defendant, presumably a total stranger to Higdon, could in the extremely short interval between the time Sergeant Medlin saw Higdon in the building and when he saw Hig-don and defendant walk from the area south of the building and enter the automobile, negotiate for and be offered a ride in Higdon’s automobile. We necessarily conclude that the circumstances established by the evidence and relied on by the State to demonstrate defendant’s participation in the burglary meet the minimum requirements to support the finding of guilty.

The above disposes of the one contention in defendant’s brief. There is no-challenge as to any of those matters for which an assignment of error in a motion for new trial is not required for appellate review, but notwithstanding this we have reviewed them and find no prejudicial error.

The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Edward Eugene WASHINGTON alias Robert Eugene Mason, Appellant.
    No. 49511.
    Supreme Court of Missouri, Division No. 1.
    Feb. 11, 1963.

      Gene R. Martin, Kansas City, Mo., for appellant.
    Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
   HOUSER, Commissioner.

A Jackson County jury convicted Edward Eugene Washington of first degree robbery. He has appealed from a judgment and sentence of 5 years in the penitentiary. Appellant not having filed a brief we examine the assignments of error in his motion for new trial.

The first four assignments (that the verdict is contrary to the law, contrary to the evidence, against the weight of the evidence, not supported by any substantial evidence and was arrived at by speculation, guesswork and prejudice) will not be reviewed. It is no longer necessary to cite authority for the proposition that such generalities, in violation of Sup.Ct. Rule 27.20, V.A.M.R., preserve nothing for appellate review.

Appellant’s fifth assignment (that the court erred in overruling appellant’s motion for judgment of acquittal at the close of the state’s case, for failure of proof) was waived by appellant thereafter offering evidence. State v. Hutchin, Mo.Sup., 353 S.W.2d 701, 702 [2].

Assignment No. 6 (that the court erred in overruling appellant’s motion for judgment of acquittal at the close of all the evidence, for failure to produce any substantial evidence of guilt of the charge of first degree robbery) calls for a review of the evidence. Considered in the light most favorable to the state the evidence, and the inferences reasonably to be drawn therefrom, shows the following set of facts, which made a submissible case of first degree robbery: Viola Flanagan, in company with another lady, left her place of employment on east 10th Street in Kansas City on a March afternoon in 1962. They walked east on 10th to Tracy Street, and south on the west side of Tracy Street to Viola Flanagan’s parked car. As she approached her car she saw four young men walking “pretty fast,” proceeding south on the east side of the street. Her arm was in the handle of her purse. As she started to unlock her car two of the men crossed the street and came around in front of her car. One of them attacked her from the back. No blow was struck but she was either knocked or pulled down by an impact, and one of the men grabbed hold of her purse. She fell to the ground, was dragged a few feet, and finally let go of the purse. Both she and Mrs. Minter screamed. The two young men ran south with the purse. No word was uttered by anyone. The men went “straight south” a short distance, then crossed to the other side of the street and ran on across a vacant lot just north of an apartment house at the corner of 11th and Tracy Streets. As Viola Flanagan got up off the ground Mrs. Minter screamed “Help.” Viola Flanagan had bruises and abrasions. Her hose and dress were torn. The purse contained $2.50 cash, a railroad ticket, prescription sunglasses, a $67 check, and several articles of a personal nature. She was unable to identify the men by their facial features. She testified, however, that they were both around 21 or 22 years old, about six feet tall and weighed about 160 or 165 pounds, and that defendant was the approximate age, height, size and weight of her assailants. At the time of these events one Sylvester Brewster was near the northwest corner of 11th and Tracy Streets, waiting for a bus. Hearing a scream he went to the corner, saw a lady bending over picking up some kind of an object, and saw two “fellows,” one of whom was this defendant, on the northeast side of the street. The two men had come to a stop on a hill or terrace between the apartment house at the corner of 11th and Tracy and a residence north of the apartment. Brewster saw defendant put some type of object inside his coat pocket, then the men continued running east. While they were stopped defendant’s face was turned south, toward Brewster. Brewster saw him; and at the trial described his height, weight, coat and cap, and testified he was certain this defendant Edward Eugene Washington was the man he saw there that day. Brewster went to the assistance of the lady, and when the police officers arrived he told them what he had observed; disclosed that he knew one of the men — had seen him previously — although he did not know his name. Later he looked at pictures at police headquarters, from which he selected defendant’s picture as that of the man he saw at the scene of the crime; the same person with whom he had had a conversation on a previous July 4th, and whom he had seen from time to time going in and coming out of Garrison Centei', where Brewster used to box.

In assignment No. 7 appellant attacks verdict-directing Instruction No. 2 on numerous grounds. We pass over objections that No. 2 was not a proper declaration and was a misdirection of law, and improperly hypothesized facts, and was confusing and misleading, because such objections are too general to merit consideration on review. The objection that No. 2 assumed that the money or property referred to therein was the property of Viola Flanagan is without merit. The submission was preceded by the words “if you believe and find from the evidence, in this case, beyond a reasonable doubt,” and was followed by the admonition that unless the jury found the facts as above stated, defendant should he acquitted, which clearly negatives the idea that the truth of any of the facts therein hypothesized was assumed. State v. Wyatt, Mo.Sup., 276 S.W.2d 86, 89 [3]. Appellant contends that there is a conflict between No. 2, which requires the jury to find that defendant committed the acts set forth therein, and No. 6, which instructs that all persons are equally guilty who act together with a common intent in the commission of a crime; that a crime so committed by two persons jointly is the act of all and each one so acting, and that when two persons knowingly act together in the commission of an unlawful act or purpose, whatever either does in furtherance thereof is in law the act and deed of each of such persons. Since the evidence indicated that defendant and another participated in the commission of the crime, but did not clearly indicate which of the two perpetrated the actual assault and grabbing of the purse, Instruction No. 6 was appropriate and correct in form and substance, State v. Reece, Mo.Sup., 324 S.W.2d 656, 660 [9], and did not conflict with main verdict-directing Instruction No. 2. It was not necessary for No. 2 to require a specific finding that defendant acted together with another jointly with a common intent. Reading Nos. 2 and 6 together, the jury was clearly instructed on the matter of joint commission, and under the evidence and instructions was entitled to find defendant guilty as charged and as submitted.

Appellant’s eighth assignment attacks Instruction No. 6 on the ground that it is an abstract statement of law; fails to require a finding that defendant acted together with another with a common intent to commit first degree robbery, and conflicts with No. 2 for the reasons given in Assignment No. 7. What we have said with respect to generality and lack of conflict decides Assignment No. 8 adversely to appellant.

That part of Assignment No. 9 which does not clearly fail for generality alleges that Instruction No. 4 “should not have been given for the reason that the evidence in the case was not wholly circumstantial and the giving of said Instruction under these circumstances prejudiced the defendant.” In form Instruction No. 4 properly declared the law pertaining to circumstantial evidence, but erroneously stated that “there is no direct evidence of the guilt of the defendant in this case.” As indicated, there was eyewitness testimony that defendant and another strong-armed Viola Flanagan and made off with her property. The error, however, does not call for a reversal of the judgment. It did fiot harm the defendant. On the contrary it favored the defense, for it tended to disparage the direct testimony of the prosecuting witness and.to depreciate the state’s case. There was some justification for giving a circumstantial evidence instruction. The case was based in part upon inferences to be drawn from circumstances. For instance, there was no direct evidence of a felonious intent to rob. Where a case partially depends upon circumstantial evidence it is proper, although not mandatory, to instruct thereon. State v. Arnett, 338 Mo. 907, 92 S.W.2d 897, 901 [8]; State v. Mansker, 339 Mo. 913, 98 S.W.2d 666, 672 [5]; State v. Smith, 354 Mo. 1088, 193 S.W.2d 499, 503 [12].

In Assignment No. 10 appellant raises the point that the court erred “in failing to fully instruct the Jury of all the law covering the issues raised by the information and the evidence.” This is too general to merit consideration. Further, that the court failed to instruct that the burden of proof was upon the state to establish defendant’s guilt beyond a reasonable doubt. Of course, it is fundamental that the instructions must include the subject of reasonable doubt. Section 546.070(4), RSMo 1949, V.A.M.S. “No case is ever submitted, none could lawfully be submitted, without a charge that the defendant in law is presumed to be innocent and the state must prove his guilt beyond a reasonable doubt before he can be found guilty.” Concurring opinion of Hollingsworth, J. in State v. Barton, 361 Mo. 780, 236 S.W.2d 596, 602. But that requirement was fully met in this case. Verdict-directing Instruction No. 2 commenced, “The Court instructs the jury that if you believe and find from the evidence in this case, beyond a reasonable doubt, that * * Instruction No. 7 properly instructed on the presumption of innocence and the continuance of the presumption throughout the trial; that the presumption of innocence “at the end entitles the defendant to an acquittal, unless the evidence in the case, when taken as a whole, satisfies you of defendant's guilt beyond a reasonable doubt,” and that the jury should acquit defendant if they had a reasonable doubt of defendant’s guilt.

Appellant’s eleventh assignment assails the giving of alibi Instruction No. 8, which follows: “The Court instructs the jury that the defendant has interposed for a defense what is known as an alibi; that is, that even if the crime was committed, he at the time of the commission thereof, was at another and different place than that in which such offense was committed, and therefore was not and could not have been the person who committed the same. Now, if the evidence leaves in your mind a reasonable doubt as to his presence at the place where the offense was committed at the time of the commission thereof, you will find him not guilty.” Appellant says this instruction failed to tell the jury that defendant was not required to establish the defense of alibi beyond a reasonable doubt, and misdirected the jury by telling them “in effect that the burden of proof was upon the Defendant to establish his innocence beyond a reasonable doubt.” An identical instruction given in State v. Williams, 309 Mo. 155, 274 S.W. 427, 435 [12], was attacked on the same ground. What this court said in the Williams case is fully applicable here, 274 S.W. 1. c. 435: “The objection made to this instruction is that it does not advise the jury as to the quantum of proof necessary to establish the defense of alibi. This instruction was given in connection with one on reasonable doubt and a presumption of innocence. Where this is the case, an instruction on alibi which tells the jury, as this did, that if the evidence of this defense, in connection with all of the other relevant facts, raises a reasonable doubt of the presence of the accused at the time and place of the crime, he should be given the benefit of such doubt and be acquitted. The instruction given conforms to these requirements and limits the jury’s consideration to the same rule as in the weighing of other testimony; but does not direct the jury as to a particular manner in which the evidence in support of this defense should be considered. Thus framed, the state’s instruction accords with the rule announced in many cases.” The same point was raised and rejected in State v. Prunty, 276 Mo. 359, 208 S.W. 91, 95 [5], in this language: “The point is not well taken. The jury was instructed as to the defense of alibi, and told that if they had a reasonable doubt of the presence of the defendants, or either of them, at the time and place where the crime was committed, they should acquit them, or either of them. This was entirely sufficient for the purpose, and gave defendants the full benefit of that defense, and did not place the burden upon them.”

Appellant’s twelfth assignment is error in refusing appellant’s proffered Instruction No. A on the defense of alibi, but in view of the fact that the defense was properly submitted by Instruction No. 8, there could have been no error in refusing another instruction thereon.

Finally, assignment No. 13 is error in refusing appellant’s proffered Instruction No. B,' on the ground that it was a proper converse of Instruction No. 2. Instruction No. B, however, was not kept from the jury, for the exact language of No. B (hereinafter italicized) was incorporated in given Instruction No. 5, a proper converse instruction, which follows: “The Court instructs the jury that if you find and believe from the 'evidence that the Defendant Edward Eugene Washington, did not rob, steal, take or carry away any property of one Viola D. Flanagan, and that defendant did not act together with any other person or persons to rob, steal, take or carry away any property of one Viola D. Flanagan, then you. will find the Defendant not guilty and you will acquit him.”

We have examined the information, verdict, judgment and sentence, as required by Sup.Ct. Rule 28.02, and find them sufficient in form and substance.

The judgment is affirmed.

COIL, C., not participating.

HOLMAN, C., concurs.

PER CURIAM.

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

All of the Judges of the Division concur and HUNTER, Special Judge, concurs.


text:
    Billye New ALLAN, Plaintiff-Appellant, v. Thomas G. ALLAN, Defendant-Respondent, v. Fannie I. ALLAN, Third-Party Defendant-Respondent.
    No. 49223.
    Supreme Court of Missouri, Division No. 1.
    Jan. 14, 1963.
    Motion for Rehearing and to Transfer to Court En Banc Denied Feb. 11, 1963.

      Douglas & Douglas, Neosho, for appellant.
    Emerson Foulke, Joplin, for respondent.
   HOLMAN, Commissioner.

Plaintiff’s petition in this cause was in two counts. In the first count she sought a divorce from defendant, and in the second count she prayed for a decree for the partition and sale of a 74-acre farm which had been conveyed to plaintiff and defendant by defendant’s parents, John A. and Fannie I. Allan. Defendant filed a cross bill alleging that plaintiff was addicted to drunkenness and, upon the trial, was granted a decree of divorce from plaintiff. No appeal has been taken from that decree. John A. Allan died prior to the filing of this suit. Defendant, for answer to Count II, alleged that “a consideration for said conveyance was that the defendant and plaintiff care for and provide for the defendant’s father and mother for and during their natural lives and it was understood and agreed between the parties to said conveyance at the time said conveyance was made that the defendant’s father and mother have and retain a life estate in the real estate described; * * * that through an oversight and mutual mistake on the part of all the parties * * * the said conveyance failed to recite that the grantors retained life estate in the real estate conveyed.” He also filed a motion seeking to have his mother-made a third-party defendant and that motion was sustained.

Fannie Allan, in her answer, adopted the allegations of defendant’s answer and prayed that the court “reform said deed so as to recite that she, the said Fannie I. Allan, has and maintains a life estate in the real estate described in count two of the plaintiff’s petition or in the alternative that said deed be set aside for failure of consideration.” The trial of Count II resulted in a judgment setting aside the aforementioned deed “because of a failure of consideration to support the deed in that plaintiff Billye New Allan and the defendant Thomas G. Allan have failed and refused to carry out and fulfill the consideration for said deed.” Plaintiff has duly appealed from that judgment.

Plaintiff and defendant were married- on November 27, 1956, and separated July 15, 1961. The deed in question, executed September 5, 1957, was a warranty deed in usual form and recited a consideration of “one dollar and other good and valuable considerations.” Because of illness John A. Allan was unable to sign his name to the deed and therefore executed it by mark which was witnessed by T. H. Litton and Ray E. Garber. Mr. Allan died August 14, 1958. Both plaintiff and defendant concede that no money was paid as a consideration for the conveyance.

Defendant testified that he had lived at his father’s home during the period of his marriage to plaintiff because his father had been quite ill and it was necessary that he help care for him; that his father was bed-fast, had no control over his elimination, and had required a great deal of care for some years before his death; that he had made an agreement with his father and mother to the effect that they would deed him the farm if he would take care of his father and make a home for his mother as long as they lived; that his wife was not present at the time the deed was made because she was in the hospital; “I insisted her name be put on it; I didn’t have an idea in the world we would ever have any trouble. Q. You did understand they were deeding it to you and your wife, though? A. * * * With the specifications that we make a home for them as long as they lived. Q. That wasn’t specified in the deed? A. Because my father and I have always done just exactly what we told one another we would do.”

Defendant further testified that he had .gone to the office of his attorney, Mr. Foul-ke, and instructed him to prepare the deed; that he didn’t tell Mr. Foulke anything about any agreement, “just told him to make out a deed”; that Mr. Foulke was the notary public who took the acknowledgment of the grantors; that he had helped his mother in taking care of his father until his father died, but that plaintiff had not assisted in any way in caring for his father ■ or mother; that his mother was 80 years of age, and that at trial time he and his mother were still living together on the farm here involved.

Plaintiff testified that she was not present when the deed was executed and that her husband had later told her that “his dad gave it to him for taking care of him when he was sick”; that she had heard nothing about “Tom’s mother and father having a life estate in this real estate.” In regard to defendant’s father, this witness stated, “his mother and I took care of him and Tommie helped. We all took care of him.”

Fannie Allan (hereinafter sometimes referred to as respondent) testified that she and her husband had lived on the farm in question for 28 years. In regard to the reason for the execution of the deed this witness stated that she, defendant, and her husband “talked it over and Tom had to quit farming because he couldn’t take care of his dad and do justice to both; and we just decided we had better deed the farm to him because he was losing out all the way around. The other boys had gotten more than their share.” She further stated that she didn’t know that plaintiff’s name was on the deed, “but we signed it to Tom with the understanding that I was to always have a home there as long as I lived.”

One of the witnesses to Mr. Allan’s mark was Ray Garber who was a brother of Fannie Allan. He said there was some conversation before the deed was signed and that defendant’s father stated that “they would deed it to Tom provided it was their place, their home as long as they lived.” The other witness who signed the deed was Thomas Litton who testified that on the occasion the deed was signed “Tom’s daddy did ask him to take care of him and his mother as long as they were alive. Q. Was there anything said about them living there as long as they lived? A. Well, I wouldn’t be positive about that part of it. Like I said, I couldn’t say word for word, but he did ask them to take care of him.”

As heretofore stated, defendant and third-party defendant, in their pleadings, sought as alternative relief (1) the reformation of the deed to recite that the grantors retained a life estate in the real estate conveyed, which recital was omitted as a result of a mutual mistake on the part of all the parties, and (2) that said deed be set aside for failure of consideration.

At the outset of our consideration of this appeal we deem it appropriate to quote certain established rules applicable to cases of this nature. “[A] mistake affording ground for the relief of reformation must be mutual and common to both parties to the instrument. It must appear that both have done what neither intended. * * * [A]nd that mutual mistake, in order to justify granting the relief of reformation, must be established by clear and convincing evidence.” Walters v. Tucker, Mo.Sup., 308 S.W.2d 673, 675, 679. “ ‘A mutual mistake presupposes a prior or preceding agreement between the parties, and, this agreement of necessity must be shown.’ Dougherty v. Dougherty, 204 Mo. 228, 237, 102 S.W. 1099, 1101.” Zahner v. Klump, Mo.Sup., 292 S.W.2d 585, 587. “The cancellation of a deed is the exercise ‘of the most extraordinary power of a court of equity, which ought not be exercised except in a clear case,’ Lastofka et al. v. Lastofka, 339 Mo. 770, 99 S.W.2d 46, loc. cit. 54, and the evidence to justify cancellation should be clear, cogent, and convincing.” Edinger v. Kratzer, Mo.Sup., 175 S.W.2d 807, 813. It is elementary that in this case the burden was on the defendant and the third-party defendant to present evidence which, when tested by the quoted rules, is sufficient to warrant the relief sought.

We have concluded that respondent is not entitled to a judgment granting either reformation or cancellation.

In order to prevail on the issue of reformation it is necessary to show that the mistake was mutual, i. e., common to both parties. In that connection we should perhaps state that we are convinced that there was an agreement between defendant and his parents that they should have the right to occupy the farm as a home as long as either lived. However, it does not appear to have been agreed that that provision would be written into the deed. No witness testified that there was any agreement or understanding that the grantors would reserve a life estate in the deed. Moreover, it clearly appears that defendant did not intend that the deed specify that his parents reserved a life estate. He did not instruct Mr. Foulke to place that provision in the deed and explained that it was not specified therein “because my father and I have always done just exactly what we told one another we would do.” Since there was no mutual mistake on the part of respondents in regard to the provisions of the deed their claim for relief in the nature of reformation must fail.

We are also of the opinion that the evidence is insufficient to warrant the cancellation of the deed for failure of consideration. The decree of the trial court was based upon a finding that the plaintiff and defendant “have failed and refused to carry out and fulfill the consideration for said deed.” The quoted finding would seem to indicate that the trial court was of the view that the grantees had failed and refused to care for and make a home for defendant’s parents.

Plaintiff did not make any agreement in connection with this conveyance. However, since she has accepted the benefits thereof we will assume (but do not decide) that she is bound by the agreement between defendant and his parents. The evidence does not indicate, however, that plaintiff was included in the agreement. Both of the respondents testified that the agreement was that “he” (defendant) was to take care of his parents. We find from the evidence that defendant had fully performed his agreement from the time it was made until trial time. It is true that if plaintiff obtains a partition decree and the farm is sold, respondent will be precluded from continuing to occupy the residence as a home, but that prospective development does not afford a sufficient basis for a judgment canceling the deed because of “a failure of consideration.” Anderson v. Gaines, 156 Mo. 664, 57 S.W. 726.

It might be said that there was no consideration for the conveyance of an interest in the property to plaintiff, but apropos to that subject we have stated that “a voluntary conveyance, without valuable consideration, is valid as between the parties. Binnion v. Clark, 359 Mo. 202, 221 S.W.2d 214, 217, and authorities there cited. To set a deed aside or otherwise invalidate it there should be ‘some other compelling circumstance’ besides a mere lack of consideration (id). And see 26 C.J.S., Deeds, § 16; Robinson v. Field, 342 Mo. 778, 117 S.W. 2d 308; Stoops v. Stoops, Mo., 276 S.W.2d 188; 16 Am.Jur., Deeds, § 57.” Rubinstein v. Rubinstein, Mo.Sup., 283 S.W.2d 603, 607.

The primary contention of respondent is that plaintiff, by the filing of this suit for divorce and partition, has repudiated the agreement defendant made with his parents, and has “placed it beyond” the power of plaintiff and defendant to perform any such agreement and hence the deed should be set aside. The cases relied upon by respondent to support that contention are Wagner v. Hicken, Mo.Sup., 232 S.W.2d 531, and Hood v. Throop, Mo.Sup., 280 S.W.2d 106. In each of those cases the plaintiff deeded property to defendants in consideration of a promise to care for the grantor. The proof showed that defendants had failed to perform. In each case the deed was set aside, but the court stated that the evidence supported a finding that defendants never intended to perform and therefore a fraud had been practiced upon the plaintiff. In the case before us there was no evidence of fraud or bad faith on the part of either grantee. The agreement had been performed until the time of trial and the development which may preclude future performance was the result of the domestic difficulties of plaintiff and defendant. There is no evidence that either of the grantees contemplated filing an action for divorce and partition at the time of the conveyance. We are therefore of the opinion that the cases cited involve such different factual situations that they do not support the judgment herein.

As indicated, we rule that respondent, under the evidence here presented, is not entitled to a judgment setting aside the deed.

The deed before us conveyed the land to “Thomas G. Allan and Billye New Allan, husband and wife.” It therefore vested the title in the grantees as tenants by the entireties. Upon the entry of the decree of divorce they each became the owner of an undivided one-half interest therein as tenants in common and either was entitled to partition the same. Jones v. Jones, 325 Mo. 1037, 30 S.W.2d 49. Plaintiff had sought a decree of partition in the second count of her petition, and, under the facts here shown, was entitled to that relief.

The judgment appealed from is reversed and the cause is remanded for further proceedings in accordance with the views herein expressed.

COIL, C., not participating.

HOUSER, C., concurs.

PER CURIAM.

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

All concur.