author: HIGGINS, Commissioner.

text:
    Floyd E. WILHITE, Plaintiff-Appellant, v. Luther and Glen HURD, d/b/a Springfield Tire Exchange, Hawkeye-Security Insurance Company, and State Treasurer, State of Missouri, Custodian, Second Injury Fund, Defendants-Appellants.
    No. 52044.
    Supreme Court of Missouri, Division No. 1.
    Jan. 9, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 13, 1967.

      Neale, Newman, Bradshaw, Freeman & Neale, Warren S. Stafford, Springfield, for plaintif f-appellant.
    Buell F. Weathers, David P. Hargrave, Mann, Walter, Burkart, Weathers & Schroff, Springfield, for defendants-appellants Luther and Glen Hurd, d/b/a Springfield Tire Exchange, and Hawkeye-Security Ins. Co.
    Norman H. Anderson, Atty. Gen., Jefferson City, Donald L. Randolph, Asst. Atty. Gen., for defendants.
   HIGGINS, Commissioner.

Floyd E. Wilhite claimed compensation from his employers, Luther and Glen Hurd, d/b/a Springfield Tire Exchange, and their workmen’s compensation insurer, Hawk-eye-Security Insurance Company, for alleged injury to eye and head on February 11, 1959, and from the State Treasurer of Missouri, Custodian, Second Injury Fund, alleging pre-existing disability due to cataract in his left eye. Referee Leonard Newton of the Division of Workmen’s Compensation entered an award of total and permanent disability against the employer and insurer and the Second Injury Fund. The Industrial Commission modified the Referee’s award to an award of compensation for permanent partial disability of the sight of plaintiff’s right eye and, upon further review, the Circuit Court in part reversed the Industrial Commission. All parties, including the State Treasurer, have appealed.

On February 11, 1959, plaintiff was operating a tire spreader at his employer’s place of business when a large truck tire slipped from the spreader and struck him on the forehead knocking him to the floor. He was not rendered unconscious and he reported the accident to his employers. Shortly thereafter, he experienced a severe headache, “black marks” floating across his right eye, and had a feeling of “slashing water” in that eye. He continued to work until February 18, 1959, when he saw Dr. Robert Stewart, an eye specialist. He was then blind in his right eye and Dr. Stewart diagnosed the injury as a retina detachment of the right eye. During the next four months plaintiff was in the hospital on two occasions and Dr. Stewart performed three separate operations on plaintiff’s right eye to correct the detached retina. The operations were not successful and plaintiff could see only light with his right eye.

Plaintiff returned to his job in June, 1959, and worked for approximately nine months before being discharged for causes not related to his injury. He had no trouble doing the same work he had done before the accident and he had also resumed his driving and reading.

On May 21, 1960, plaintiff filed a claim for compensation against his employers and their insurer. He alleged injury to “eyes and head * * * Retina detachment of right eye and injury to left eye. Head was also injured.” On March 6, 1961, plaintiff and his attorney and the employers and their insurer by their attorney appeared before Referee Leonard E. Newton at which time plaintiff asked that his claim be dismissed “so that a rating of permanent disability” could be made. Pursuant to the request, Referee Newton dismissed plaintiff’s claim without prejudice and made the following additional record entry: “Compensation rate $37.50, compensation has been paid in the amount of $600.00 for 16 weeks healing period, medical is being furnished in the amount of $1618.80, permanent partial disability right eye rated at 92% loss or 128.8 weeks or $4830.00, facial disfigurement for the up-turning of right eye ball rated at $200.00 total or $5030.00 together with healing period of $600.00 makes a total of $5630.00. Mr. Weathers (attorney for employers and insurer), do you agree to the rating as dictated? Mr. Weathers: Yes, Your Honor.”

The last payment pursuant to the foregoing rating was made November 28, 1961, and on January 2, 1962, plaintiff again filed his claim for compensation against his employers and their insurer and the custodian of the Second Injury Fund. He alleged injury to “Eyes and head- — Preexisting disability being industrial blindness of left eye due to cataract * * * Retina detachment of right eye and head injury. Further injury to left eye. Worsening of nervous condition. Nervous and mental condition.” The Referee’s hearing was commenced February 26, 1963, and recessed from time to time, being concluded October 2, 1963.

Mr. Wilhite was 44 years of age at the hearing and had done tire repair work for the Hurds’ Springfield Tire Exchange for approximately three years prior to the accident on February 11, .1959. Previous to that employment he worked approximately fifteen years for DeWayne Mattress Company in Detroit, Michigan, and had no eye trouble or nervousness. The “black marks” and “slashing water” noticed shortly after the accident were the only unusual conditions present in either' eye. “The right eye was the only thing I was concerned in at that time.” The condition of plaintiff’s eyes and sight prior to the accident was described: “I drove an automobile all the time, I made trips whenever I wanted to, I worked, I fished, went wherever I wanted to in my car without any difficulty.” He had no trouble reading and was not off work for injury or illness. He had worn glasses for nearsightedness for about 25 years. At the hearing plaintiff complained of “a pressure in my head * * * I’m in fear, if my wife leaves me I can’t stand it; she stays with me constantly * * * I have the feeling I’m going to drop or black out, I don’t never completely black out, at times I have to stand there and wait until the drunkenness leaves, I feel off-balanced * * * I can’t stand noise, excitement whatsoever * *' * I can’t even stand the television.” He first noticed these symptoms “within the last year and a half or two years” prior to February 26, 1963. He was nervous after his 1959 eye surgery. He was able to see out of his left eye following the accident and could see “some” with his left eye at the hearing. He experienced no difficulty in his left eye by reason of being hit by the tire. However, it worsened in “something like the last year and a half or two years, it’s got a lot worse the last few months.” His nervous and mental conditions became worse along with the rapid loss of vision in his left eye. Plaintiff went to Dr. James B. Allison, a specialist in neurology in February 1962. Prior to that he saw Dr. Alex Brown, a psychiatrist, on one occasion following his last work in 1960, and he was treated by Dr. Carle H. Schroff for chronic anxiety emotional disturbance beginning June .16, 1963. Plaintiff admitted “a pre-existing disability in the right eye of eight percent.” He also admitted that his employers told him he was discharged from his employment for drinking on the job.

Plaintiff’s eye specialist, Dr. Stewart, first saw him February 18, 1959. “At that time he had a retina detachment of the right eye. * * * He was very nearsighted in both eyes requiring about minor 11 sphere roughly in both eyes, the best type of vision; vision in his right eye because of the detachment was limited to hand motion, the vision (distant) on that day in his left eye was 20/70 which was the best correction that we could get at that time. * * * There was some central lens ptosis present on both eyes. * * * One could definitely say that the retina detachment was caused by trauma which the patient sustained several days previously * * *. On the day of the examination being 20/70 that would be a 36% loss and at another date the best vision we ever got for Gene was 20/50 minus, that would be about 25% loss.” Other left eye' readings were September 1,1959, 20/50 minus; April 16, 1960, 20/60 minus and 20/50 minus 1 upon dilation; March, 1960, 20/60 plus 1; August 16, 1960, 20/50 plus minus 1; October 5, 1960, 20/50 minus 2; April 18, 1961, 20/60; September 25, 1961, 20/70; February 23, 1963, 20/200. The last would represent 80 percent loss. Vision loss in the left eye on February 18, 1959, was caused by “the cataract changes in the center part of the eye and also the extreme myopia, the extreme myopia may not have any real bearing on the visual acuity loss because often times with that much myopia you will have 20/20 vision.” Visual efficiency of the left eye on that date based on the Snellan table was 36 percent loss of distance vision and from a reading of 14/98, the near vision loss was 65 percent. He also gave readings of 47.5 percent loss of distance acuity and as much as 86 percent near efficiency loss. Muscle function in both eyes was normal. Dr. Stewart stated that the cataract condition was the cause of deterioration in left eye vision and that if a cataract removal was performed plaintiff would have a recovery percentage of “five chances out of six of not having a detachment” which is a risk where one detachment has been sustained. He would expect a cataract operation to correct the acuity and field deficiencies in plaintiff’s left eye. He found no evidence qf traumatic injury to plaintiff’s left eye and rendered no treatment for it except to change plaintiff’s glasses.

“Q. Now, the loss of vision of the left eye * * * after your examination of February 18th resulted from a worsening of the cataract condition, is that correct? A. Yes, as far as we can tell that’s about the only cause as brought about.
“Q. Now, that worsening of the cataract condition would (was) not speed it (speed-ed) up nor aggravated in any way by any alleged accident on February 11th, 1959, to your knowledge, was it, Doctor? A. No, I couldn’t say — I can’t answer that question really because a traumatic blow to the head might aggravate the cataract condition. On the other hand, as we followed Gene over a period of a year or so you see as we look over those visual acuity reports we have given you there does not seem to be any particular worsening condition at that time, so, if it was worsened by the blow, it probably was not of a great degree.
“Q. You found no evidence over that period of time that it was worsened by the blow, did you Doctor? A. There was nothing in the examination I made of Gene that made me feel that it was worsened by the blow.”

On his Form 9A report Dr. Stewart stated that the right eye was injured and that the other or left eye was not. Although advised by Dr. Stewart to have his left eye operated for cataract, plaintiff has not had the operation. “I’d say I’d certainly want it, I would take the risk, in other words ⅜ ‡ ⅝ »

Dr. Allison first saw plaintiff in October, 1961, for a Social Security examination. He also administered psychotherapy on thirteen occasions between February and May, 1962. He first classified plaintiff as a severe anxiety reaction and later felt he was in the state of psychotic depression. He treated plaintiff with tranquillizers and antidepressant medications. He did not respond well, his condition worsened, and he was unemployable during the period of treatment by Dr. Allison. Based on history given by plaintiff, it was his opinion that plaintiff’s psychiatric condition was “precipitated by the accident that he sustained.” In addition he felt that the decrease in vision in plaintiff’s left eye, loss of vision in his right eye, fear of loss of vision of the left eye, and the loss of job were all factors in plaintiff’s psychiatric condition. The doctor thought that restoration of sight in the left eye by cataract operation would improve plaintiff’s nervous tension but would not cure his nervousness. The permanency of plaintiff’s condition was a matter of speculation; that with intensive (shock) treatment he had a fair chance for recovery but without it his chances were poor. Plaintiff had decided against such treatment. Dr. Allison attempted to establish plaintiff’s emotional stability prior to February 11, 1959, but “he didn’t remember or was very vague about his actions except he was always somewhat high strung and a little nervous before then.”

Dr. Schroff’s opinion of September 24, 1963, was that plaintiff had an emotional instability which pre-existed and was made evident by the 1959 accident; that he has been extremely nervous and restless since the accident resulting in a detached retina; that his near loss of vision has made him extremely apprehensive; that any occupation is out of the question unless his vision can be improved which must be quite distressing and depressing; that the present condition is a direct result of his injury and his prognosis would be directly proportional to his chances for self-sufficiency which, in turn, must be dependent upon his vision. Improvement in vision would decrease his anxiety.

According to plaintiff’s wife, Melva Wilhite, prior to the accident “he was in perfect health you might say,” and had no nervous or mental condition. Nina Moore and Alice McFarland testified similarly; and plaintiff’s earnings in the year preceding his accident were stipulated at $3,866.95.

As previously indicated, the award of the Referee was modified by the Industrial Commission and the Circuit Court made findings contrary to the Final Award of the Commission. Nevertheless, it is the Award of the Commission that is reviewed in the appellate court, Patanc v. Stix, Baer and Fuller, Mo.App., 326 S.W.2d 402, 411 [1],

The Industrial Commission entered its Final Award November 17, 1964, “affirming on review the award of the referee * * * as modified.” It found as a result of the accident on February 11, 1959, that plaintiff sustained injury to his right eye, the exact nature of which was “92% permanent partial disability of the sight of the right eye" for which he was entitled to 128.8 weeks of compensation at $37.50 per week, 16 weeks of compensation at $37.50 per week for healing period, and $200 for facial disfigurement, a total of $5,630, against which the employer and insurer were entitled to a credit of $5,630 in full satisfaction of the Award. By way of additional findings of fact and conclusions of law the Commission further found:

“In an eye examination following the accident it was discovered that the employee had a pre-existing cataract in the left eye. We note that this condition was not particularly disabling at that time and he continued working at his regular job for some nine or ten months subsequent to his hospitalization following the accident. At that time he was discharged from his employment for reasons having no bearing on the matter here under consideration. Some year and a half before the hearing (which was commenced on February 26, 1963) the claimant lost the vision in the left eye as a result of the progression of the cataract. We think it may reasonably be said that he is now permanently and totally disabled from his bilateral vision loss. This raises the question of whether a ‘condition’ which exists at the time of the occurrence of an accident which subsequently blossoms or blooms into a ‘disability’ is chargeable to the second injury fund when the finally combined disabilities are greater than that which would have resulted from the accidental injury, considered alone and of itself. We think not. Section 287.220, RS Mo 1959 [V.A.M.S.], in referring to total and permanent disability cases involving the second injury fund speaks of the ‘previous disability or disabilities’. This is quite different from saying the ‘previous condition or conditions’. We cannot believe that the legislative use of the terms ‘disability or disabilities’ was accidental. The evidence wholly fails to prove that the disability resulting from the accidental injury to the right eye combined at that time with a then existing disability to the left eye which rendered the employee then and there permanently and totally disabled. We are unable to see any legislative intent authorizing us to tack subsequent disabilities at the expense of the second injury fund. We rule the contention against the employee.
“The employee is a nervous, high strung person, inferentially, by temperament. He was first seen by a neurologist-psychologist in October, 1961 when he was diagnosed as having an anxiety reaction neurosis. Subsequently, this was diagnosed as psychotic depression. The doctor’s testimony indicated that any one of a number of factors could have been the triggering mechanism in causing this condition. We find and believe that the employee has failed to prove that this condition was caused, precipitated or aggravated by the accident of February 11, 1959. The facts here bear considerable analogy to those in Patane vs. Stix, Bear & Fuller, 326 SW2d 402.”

Neither the circuit court nor the appellate courts may substitute their judgment for such a Final Award if, upon consideration of the whole record, including legitimate inferences, in the light most favorable to the award, the findings of the Commission are supported by substantial and competent evidence and are not contrary to the overwhelming weight of the evidence. Snowbarger v. M. F. A. Central Co-op., Mo., 349 S.W.2d 224, 225 [2]; Ginter v. Freund Baking Co., Mo.App., 388 S.W.2d 505, 507 [1, 2]; Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136, 141 [6, 7],

Under this rule the previously stated evidence provides ample support for the Commission’s Award.

Plaintiff contends first that the uncon-tradicted evidence requires a finding that the accident resulted in a total loss of vision to his right eye and that previous disability to his eyes combined with the injury to result in total permanent disability. Plaintiff’s position is based primarily on mathematical computations which make use of Dr. Stewart’s percentages of sight deficiencies due to myopia and left eye cataract to show that plaintiff had less than 20/20 or full vision in his eyes prior to the accident, and thus to show previous disability to plaintiff’s eyes.

“Previous disability to his eyes,” however, is not what is involved. The pre-existing permanent partial disability necessary to compensation from the Second Injury Fund under Section 287.220, V.A. M.S., relates to disability to work and means “industrial disability” or loss of earning capacity, rather than physical impairment as such. Diederich v. Tri-City Ry., 219 Iowa 587, 258 N.W. 899, 902 [2]; 99 C.J.S. Workmen’s Compensation § 296, p. 1035. Consequently, even though the Commission might have been justified in making findings other than those it did make, it did not do so, and the evidence, irrespective of conflict and contradiction, that plaintiff was able to work, read, fish, drive, and “was in perfect health” prior to the accident, and that he worked without difficulty at the same job as before his injury for nine months following his injury, operations and healing period layoff; that the sight in his left eye was retained until clouded by cataract quite some time after discharge from his employment, and that an operation would likely restore its sight; that there was some sight in the right eye even though limited to light and hand motion, constituted competent and substantial evidence to support the commission in finding permanent partial disability in the sight of one eye rather than total loss of the right eye, or industrial blindness of both eyes and pre-existing disability in respect to either or both of plaintiff’s eyes, necessary to Second Injury Fund consideration under Section 287.220, V.A.M.S.

Plaintiff contends also that the finding that he failed to prove that his psychotic depression was caused, precipitated or aggravated by the accident in question was not supported by competent and substantial evidence and is clearly contrary to the overwhelming weight of the evidence.

Mental conditions are, of course, compensable under Missouri’s Workmen’s Compensation Law provided they are shown to have been directly and proximately caused by the accident. Cebak v. John Nooter Boiler Works Co., Mo.App., 258 S.W.2d 262, 265 [4]. Plaintiff argues that “it is uncontradicted, undisputed and unquestionable that plaintiff-appellant was, and is, totally and permanently disabled from a- mental condition — psychotic depression,” and this could be the case if plaintiff continues without treatment in view of the diagnoses and prognoses of Doctors Allison and Schroff. However, proof of the condition' is not proof of causation.

Plaintiff points to the opinion of Dr. Allison that plaintiff’s psychiatric condition was precipitated by the accident, and to the opinion of Dr. Schroff that plaintiff’s chronic anxiety emotional disturbance was a direct result of the injury. He then cautions that even though the Commission be vested with the right to pass upon credibility of witnesses, it may not arbitrarily disregard and ignore competent, substantial and undisputed evidence of witnesses not shown to have been impeached. Corp v. Joplin Cement Co., Mo., 337 S.W.2d 252, 258 [5-7].

Again, upon the record in this case, the Commission might well have made the finding suggested by plaintiff. However, a review of the previously stated testimony of Doctors Allison and Schroff in its entirety together with other evidence in this case supports the Commission rather than to show an arbitrary disregard of the evidence.

According to Dr. Allison, the permanency of plaintiff’s mental condition was a matter of speculation and he had a fairly good chance of recovery if he took shock treatment which, at the time of the hearing, he was refusing. Dr. Allison also thought that an operation for repair of plaintiff’s cataract would help the nervous condition. Similarly, Dr. Schroff testified that improvement in plaintiff’s vision would bring about a decrease in his anxiety, and Dr. Stewart felt the chances to be five out of six for the success of a cataract operation. Such evidence is inconsistent with the alleged permanency of a mental condition.

In respect to causation, Dr. Allison, although stating that the plaintiff’s psychiatric condition was precipitated by the accident, also stated that plaintiff “always was somewhat slightly nervous”; that in trying to establish whether he was emotionally stable prior to the accident, plaintiff “didn’t remember or was very vague about his actions except he was always somewhat high strung and a little nervous before the accident.” Plaintiff told him he had had previous minor symptoms, of anxiety. He diluted his opinon on causation further by recognizing that decrease in vision in plaintiff’s left eye, loss of vision in his right eye, fear of loss of vision in his left eye, and loss of his job were also factors to be taken into account in plaintiff’s psychiatric condition. Dr. Schroff in his attempt to relate the psychiatric condition to the injury recognized that plaintiff’s emotional instability probably existed before the accident. The opinions of Doctors Allison and Schroff were based in part necessarily on history and complaints related to them long after the accident. Plaintiff had no psychiatric treatment prior to October, 1961, and he disputed any pre-existing mental condition by his testimony that he first noticed symptoms within the year and a half to two years prior to February 26, 1963, a time when his cataract condition was rapidly deteriorating. It was then that he thought he was “going to pieces.” His ability to do his work for nine months following his operations and convalescence contradicts a disabling mental condition at that time. Further, contradiction of mental illness prior to the accident was furnished by Mrs. Wilhite in her assurance that “he was in perfect health you might say.”

As suggested by the Commission, Patane v. Stix, Baer and Fuller, supra, is in point. Plaintiff there sustained an injury in the nature of a blow on the head from a falling counter top. She was subsequently discharged for substandard performance not related to her injury. She, too, claimed a psychoneurotic condition, but the Commission, despite medical testimony to the contrary, was affirmed in its finding that any such mental condition was not caused, precipitated, or aggravated by the accident and that her discharge was the precipitating factor.

The evidence reviewed here constituted competent and substantial evidence to support the Commission in its second finding of a failure to prove a psychiatric condition caused by the injury as well as the finding on permanent partial disability. And on such evidence it cannot be said that there was no dispute, conflict or contradiction by which to charge the Commission with arbitrary disregard of evidence.

Points briefed by the State Treasurer and the employer and insurer respecting the statute of limitations and waiver need not be discussed because the Commission’s Final Award which made no award against the Second Injury Fund is to be affirmed, as is the 128.8 weeks of compensation awarded against the employer and insurer which they say in their brief should be affirmed.

The judgment of the trial court is affirmed in part and reversed insofar as it conflicts with the findings of the Industrial Commission, and the cause is remanded with direction to reinstate the Final Award made by the Industrial Commission.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

HOLMAN, P. J., and HENLEY, J., concur.

SEILER, J., not sitting.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Respondent, v. David Anthony McCULLOUGH, Appellant.
    No. 52384.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, David G. Dempsey, Special Asst. Atty. Gen., Clayton, for respondent.
    Jay White, Rolla, for appellant.
   HIGGINS, Commissioner.

Appellant was charged by. information in the Circuit Court of Phelps County, October 7, 1965, with the felony of robbery in the first degree. Section 560.120, V.A.M.S. Upon change of venue, a jury found him guilty and assessed his punishment at 5-years’ imprisonment in the penitentiary. Sentence and judgment were rendered accordingly.

Appellant tacitly concedes that the evidence was sufficient to sustain the conviction by his own statement of the case: “The State’s evidence showed that the prosecuting witness was on September 24, 1965, in a beer tavern in St. James, Missouri, where he saw and talked to David McCullough, the defendant. When they left the tavern the defendant invited the prosecuting witness to ride in a car to the Soldier’s Home in St. James, where the prosecuting witness lived. The prosecuting witness got into a car with defendant and two other boys, was taken to a location near Meramec Springs, beat, and robbed of about $15.00.” The transcript supports such statement and establishes that the site of the crime, Meramec Springs, is in Phelps County, Missouri.

Appellant’s assignment of error is that the court interfered in examination of witnesses, and argues that he was thus prejudiced.

The alleged interference occurred in these contexts:

(1) Upon cross-examination of the prosecuting witness:

“Q Well, did you see them drinking in the tavern, see that tavern man serving these minors beer in the tavern? Did you see this boy drinking beer in there? A They were sitting at the table there. Q Well, was he drinking beer or some intoxicating beverage? A I believe they were. Q Did you see them pay for it? THE COURT: What’s the purpose of that? THE WITNESS: No. THE COURT: What’s that got to do with the issues in this case? MR. WHITE: Your Honor, it reflects on the credibility. THE COURT: What is it? MR. WHITE: It reflects on the credibility of the witness, as to whether or not he remembers those things. THE COURT: Go ahead. Stay within the issues.”

(2) Upon redirect examination of the prosecuting witness:

“Q Now, I don’t know whether the jury heard the question, — I’ll ask it again — that Mr. White asked: Whether or not you had any doubts as to the ¡«identification — MR. WHITE: Now, I object to that, whether or not they, heard, just to repeat, because repetition is improper. THE COURT: Why don’t you let him ask his question. He just gets started asking * * * I don’t know what the question is.”

(3) Upon recross-examination of state’s witness, Trooper Kernick:

“Q How old was this Gerald Cook at that time? MR. HOERTEL: Now, Your Honor, I object. I don’t see that it has any relevancy; Mr. White’s witness. THE COURT: I don’t know what the purpose of it is. Trying to shift the burden? Is that it? What’s the purpose of it? MR. WHITE: To tell the jury, Your Honor, as much as I can about the case. I think I have that duty to advise the jury.
THE COURT: Sustained.”

On none of the foregoing occasions did defendant object to the court’s remarks, request an instruction to disregard, move for mistrial, - or seek any relief whatsoever until his motion for new trial; and it can only be concluded that defendant obviously did not believe the remarks to be improper or in any way prejudicial at the time they were made. If a party believes that remarks may prejudice his cause, he should object immediately and afford the court an opportunity to correct any erroneous impression, and the issue is not timely presented when raised for the first time in a motion for new trial. State v. Whitaker, Mo., 275 S.W.2d 316, 321 [19]; State v. Hudson, 358 Mo. 424, 215 S.W.2d 441, 442 [3]. Nor are these remarks in themselves indicative of “manifest injustice or miscarriage of justice” to invoke consideration of plain error under Criminal Rule 27.20(c), V.A.M.R., State v. Bazadier, Mo., 362 S.W.2d 603, 607 [8]; State v. Pinkston, Mo., 333 S.W.2d 63, 66 [1-3]; State v. Feger, Mo., 340 S.W.2d 716, 724 [11]. By way of contrast, see State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654; State v. Bunton, 312 Mo. 655, 280 S.W. 1040.

Review as required by Criminal Rules 28.02 and 28.08, V.A.M.R., shows that: the information is in proper form and sufficient; defendant was accorded jury trial upon his plea of not guilty; the verdict is in proper form and responsive to the issues; the punishment is within legal limits; the motion for new trial was considered; and allocution was granted.

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All concur.


author: HOLMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Arthur Lee HAISLIP, Appellant.
    No. 51724.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Edward L. Downs, Sp. Asst. Atty. Gen., Cape Girardeau, Mo., for respondent.
    Hugh C. Roberts, Jr., St. Louis, for appellant.
   HOLMAN, Presiding Judge.

Defendant was charged with the offense of robbery in the first degree by means of a dangerous and deadly weapon. See §§ 560.120 and 560.135 (statutory references are to RSMo 1959, V.A.M.S.). The information also charged two prior felony convictions under the provisions of § 556.-280. In accordance with the provisions of S.Ct. Rule 26.01(b), V.A.M.R., defendant waived a jury and the trial was had before the court. Thé court found defendant guilty and his punishment was fixed at imprisonment in the penitentiary for a term of five years. He has appealed from the judgment.

The weapon defendant was charged with using in the robbery was a table leg. Upon this appeal the sole point relied on by defendant is stated in the brief as follows: “The court erred in overruling appellant’s objection to the admission of State’s Exhibit 1, which is the wooden table leg, for the reason that the record is devoid of testimony connecting it to the crime charged against the appellant. Without the admission of the table leg into evidence, the State’s case of robbery first degree by means of a dangerous and deadly weapon fails as it is the specific and exclusive ‘dangerous and deadly weapon’ set forth in the indictment.”

Defendant was charged with having taken $57.80 from Milton Lasley, the money of Lasley’s employer, Walter J. Cantrell. The evidence in the case was not extensive and we have concluded that a brief statement of facts will suffice. Lasley testified that he was working nights at the Can-Sun Service Station which was owned by Mr. Cantrell; that he had known defendant as a customer-of the station for about two months; that about one o’clock a.m. on December 30, 1964, defendant drove his car into the station and purchased gas; that he also put some hub caps on the car and defendant then left the station ; that about 3 a.m., he was in the back room of the station putting away some empty soda bottles when he was “bashed” on the head; that when he regained consciousness a voice (later identified as that of defendant) said, “Don’t move or I’ll shoot you.” “He marched me over to the desk” and “told me not to look at him but to hand over the money”; that he did look at his assailant and saw that it was defendant, and then gave him all of the money he had on him, including the “changer”; that defendant still had the club in one hand and “had his hand in his pocket. I can’t swear he had a gun but I think it was.” He stated that defendant then left the station after telling him not to watch where he went or to follow him.

Mr. Lasley further testified that at that time he was still “dazed” from the blow on his head; that he staggered out to look for a policeman and fell on the sidewalk where he was later found by a young man who gave him assistance; that he gave the police information concerning the robbery and was then taken to the hospital for treatment of the head wound and remained there for three or four days.

Defendant was arrested on December 31 and was later identified by Lasley in a lineup at the police station. He was also identified at the trial as the person who struck Lasley with the table leg and took from him the money heretofore mentioned. Lasley also testified that the table leg used by defendant was kept in the service station for protection of employees; that defendant dropped it at the door as he left the service station and that he turned it over to the police. It was admitted in evidence over the objection of the defendant.

Two police officers testified that after defendant was arrested he told them he did not remember where he was after one o’clock a.m. on December 30, because he was drinking heavily.

The defendant testified that he was at the apartment of his niece, Gerry Wiseman, from 3 to 5 a.m. on December 30, except that he left for a period of about 20 minutes to get a couple of bottles of soda. He denied having committed the robbery.

Both Gerry Wiseman and her husband Carl testified that defendant came to their home at about 2 a.m. on December 30 and remained there until 5 a.m., except that he left for about 20 minutes to get some soda.

It is provided in S.Ct. Rule 26.01 (b) that the findings of the court “shall have the force and effect of the verdict of a jury.” We therefore review this case in the same manner as though a verdict of guilty had been returned by a jury, and hence, if there was substantial evidence to support the finding, it should be affirmed.

The contention of defendant that there was not sufficient evidence to support a conviction is conditioned upon the fact that the court erred in admitting the table leg in evidence. He concedes in his brief that “a table leg can be a dangerous and deadly weapon.” There is no question but that the table leg was properly identified. Witness Lasley identified the exhibit in court as the table leg defendant had in his hand at the time of the robbery. Defendant’s real contention is that the table leg was not shown to have been used in actually obtaining the money. In other words, he says the money was surrendered by reason of a threat to shoot Lasley and not because of a threat to use the club.

We do not agree with defendant’s contention. Lasley was knocked unconscious when the table leg was used to administer a very forceful blow on his head. He was dazed and substantially incapacitated by reason thereof throughout the entire occurrence. When he obeyed the command to surrender the money defendant still had the table leg in his hand. That evidence was sufficient to support a finding that the money was taken by violence to Lasley’s person and by putting him in fear of further immediate injury to his person by means of the table leg. While there was evidence that defendant threatened to shoot Lasley, which threat may have engendered additional fear, no gun was ever displayed, and, in any event, that threat would not destroy the effect of defendant’s use of the table leg.

We accordingly rule that the finding of guilt was supported by substantial evidence.

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

The judgment is affirmed.

All concur.


author: STOCKARD, Commissioner.

text:
    Mary GURNIAK, formerly known as Mary Markowska (Roth) Devisee Under Joint Will of Mary Liszewski, deceased, and Walery Liszewski, Appellant, v. Walery LISZEWSKI, also known as Walter Liszewski, and Frank Liszewski, Respondents.
    No. 51912.
    Supreme Court of Missouri, Division No. 2.
    Jan. 9, 1967.
    Motion for Rehearing or for Transfer to Court En Banc Denied Feb. 13, 1967.

      Muehlenkamp, Brazil & Murray, Robert E. Murray, Dellwood, for appellant.
    Sale & Evans, David L. Campbell, St. Louis, for respondents.
   STOCKARD, Commissioner.

The trial court dismissed plaintiff’s petition on the ground that it had no jurisdiction of the subject matter, and plaintiff has appealed.

On April 12, 1957, Mary Liszewski and Walery Liszewski, husband and wife, executed a joint will which contained the following provision:

“Second: We Walery Liszewski and Mary Liszewski his wife do hereby agree by and between ourselvs [sic] that is [sic] case that one of us shall depart from his or her life then this last will and testament shall remain unchanged as stated hereafter.”

Thereafter in the will there was a devise to plaintiff of real estate known as 1849 North Market Street, St. Louis, with the “understanding” that she should pay designated sums of money to named children of Walery Liszewski by his previous marriage and to named children of Mary Liszewski by her previous marriage, said sums to “be paid in cash * * * from property 1849 North Market Street.” Mary Liszewski died on April 5, 1959, and on November 21, 1960, Walery Liszewski executed and delivered to Frank Liszewski, his son, a quitclaim deed to real estate located at 1849 North Market Street, but reserving to himself a life estate.

By her petition plaintiff sought a declaratory judgment “decreeing the joint Will * * * to have been irrevocable by Walery Liszewski * * * from and after the date of death of Mary Liszewski,” and she also sought a judgment setting aside the quitclaim deed to Frank Liszewski.

Each defendant filed a motion to dismiss the petition for failing to state a claim upon which relief could be granted, and each defendant also filed a motion to dismiss on the ground that “the court lacks jurisdiction of the subject matter in that the Will under which plaintiff, as devisee, claims right and title has not been duly admitted to probate.” The latter motions were sustained, and the petition was dismissed with prejudice. No ruling was made on the motions to dismiss for failure of the petition to state a claim on the ground that by reason of the ruling on the other motions they had become moot.

The instrument was not offered for probate after the death of Mary Liszew-ski, and Walery Liszewski is still living. Therefore, the instrument has no standing as a will, and on the basis of constituting a will it is ineffectual for the purpose of proving title to or the right to possession of real estate. Section 473.087 RSMo 1959, V.A.M.S.; Wyers v. Arnold, 347 Mo. 413, 147 S.W.2d 644, 134 A.L.R. 876. However, the second provision of the instrument, as above set out, purports to contain the terms of an agreement or contract between Mary and Walery Liszewski concerning the disposition of their property. “Generally speaking, a contract between husband and wife for the execution of wills containing reciprocal bequests and bequests to a third person effective in enjoyment on the death of the testator last surviving is enforceable, provided the agreement is not harsh or unconscionable, but is supported by a sufficient consideration, and is definite and certain. A person may make a valid agreement binding himself to make a particular testamentary disposition of his property in consideration of the undertaking of the other party to the agreement to dispose of his property in a particular manner by will, and renouncing the power to revoke his will.” Annotation, 169 A.L.R. at p. 28. See also, Plemmons v. Pemberton, 346 Mo. 45, 139 S.W.2d 910; Stewart v. Shelton, 356 Mo. 258, 201 S.W.2d 395; and Hart v. Hines, Mo., 263 S.W.2d 13. Probate of the instrument as a will is not essential to the proof of the terms of the instrument as constituting a contract.

Plaintiff brought her action as a third party beneficiary under an alleged contract for a declaratory judgment. “Relief by declaratory judgment is sui generis, and while not either strictly legal or equitable, yet its historical affinity is equitable.” Stewart v. Shelton, supra [201 S.W.2d at p. 397]. Section 527.020 RSMo 1959, V.A. M.S., states that “Any person interested under a * * * written contract * * * may have determined any question of construction or validity arising under the instrument, * * * [or] contract, * * * and obtain a declaration of rights, status or other legal relations thereunder.” By the petition in this case a justiciable controversy was presented by a person entitled to invoke the declaratory judgment act, and the issues alleged were ready for judicial determination. Stewart v. Shelton, supra.

We do not purport to rule on this appeal or to express an opinion as to the relief, if any, to which plaintiff is entitled. That is to be determined after a trial of the issues. But, we do rule that the trial court erred in entering judgment dismissing plaintiff’s petition with prejudice on the ground that it had no jurisdiction.

The judgment is reversed and the cause remanded.

BARRETT and PRITCHARD, CC., concur.

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

DONNELLY and STORCKMAN, JJ., and FINCH, Acting P. J., concur.

EAGER, P. J., not sitting.


text:
    STATE of Missouri ex rel. PUBLIC SERVICE COMMISSION of Missouri, Appellant, v. Edd LOGAN, Respondent.
    No. 52078.
    Supreme Court of Missouri, Division No. 2.
    Jan. 9, 1967.
    Motion for Rehearing and for Transfer to Court En Banc Denied Feb. 13, 1967.

      Wayne W. Waldo, Jefferson City, for appellant.
    No attorney for respondent.
   STOCKARD, Commissioner.

The general counsel of the Public Service Commission of Missouri brought suit in the Circuit Court of Ripley County to recover statutory penalties from Edd Logan, and the trial court, after hearing “all of the evidence” entered judgment for defendant on the ground that “plaintiff has offered no valid or competent evidence.”

The background of this suit will be informative and helpful to an understanding of the issues. After the required statutory notice to Edd Logan, and after a hearing before the Public Service Commission, the Commission found that Edd Logan, a holder of Interstate Permit No. T-22-687, had violated “the Missouri Bus and.Truck Act” by transporting intrastate for hire one shipment of household furniture without a permit from the Commission. The Commission issued its Report and Order dated May 6, 1965, in which it ordered Edd Logan “to cease and desist in providing intrastate transportation service for hire or compensation without authority of this Commission,” and in which it directed its general counsel “to file an appropriate action” against Edd Logan “to invoke and collect penalties as provided by law for the violation of the Public Service Commission laws.”

In the petition filed in the circuit court of Ripley County it was alleged, among other things, that Edd Logan “transported in intrastate commerce a shipment of household goods * * * for hire * * * from a point on Highway 142, east of Doniphan to Carl Junction, both points being within the State of Missouri,” that the transportation of the household goods by Logan “was in violation of Section 390.051 RSMo 1959, V.A.M.S., which statute provides, in part, that no person shall engage in the business of a common carrier on any public highway in this state unless such carrier has a certificate issued by the Commission authorizing such operations;” and that “under the provisions of Section 390.-176 RSMo 1959, V.A.M.S., the transportation of such shipments by the defendant in violation of the law subjects defendant to a penalty of not less than $100.00 nor more than $2,000.00 for each such violation.” The prayer was that judgment be entered by the court assessing against defendant a penalty of not less than $100 nor more than $2,-000 “for each statutory violation by the defendant.”

At the trial the general counsel of the Commission offered, over the objection of defendant, a certified copy of the Report and Order of the Commission, and then announced that that comprised all of his proof in support of the petition. The trial court entered judgment in favor of defendant on the ground that “the plaintiff has offered no valid or competent evidence in this cause, and that the court is not bound by the findings of fact of the Public Service Commission of Missouri.”

We must first comment on the appellate jurisdiction of this court. Section 390.156 RSMo 1959, V.A.M.S. provides that an action to recover a penalty or forfeiture under Sections 390.011 to 390.176 shall be brought “in the name of the state of Missouri” and shall be commenced and prosecuted to final judgment by the general counsel to the Commission, and all moneys recovered as a penalty or forfeiture shall be paid to the public school fund of this state. The proper designation of the plaintiff in this case is “State of Missouri,” and not the State of Missouri at the relation of the Public Service Commission. However, the form of the caption of the case is not controlling. Exclusive appellate jurisdiction is vested in this court “in all civil cases where the state * * * is a party.” Art. V Sec. 3, Constitution of Missouri, V. A.M.S. The state is the real party in interest in this civil action to recover a penalty to be paid into the school fund of the state. This case is comparable to those where the state maintains a civil action to recover on an appearance bond. Compare State v. Haverstick, Mo., 326 S.W.2d 92, 75 A.L.R.2d 1422, and State v. Norton, Mo., 347 S.W.2d 849.

The basis for the recovery of a penalty from defendant, as expressly alleged in the petition, is that he violated Section 390.051 which provides that except as otherwise provided in Section 390.031, “no person shall engage in the business of a common carrier in intrastate commerce on any public highway in this state unless there is in force with respect to such carrier a certificate issued by the commission authorizing such operations.” (Italics added). The term “common carrier” as used in Section 390.051 is defined in Section 390.020 to mean “any person. which holds itself out to the general public to engage in the transportation by motor vehicle of passengers or property for hire or compensation upon the public highways.”

One who makes a single isolated movement of property from one point to another in this state on the public highway for hire does not for that reason alone “engage in the business of a common carrier in intrastate commerce.” He must hold himself out to the general public to engage in the transportation by motor vehicle of property for hire. In Vincent v. United States, D.C.Mun.App., 58 A.2d 829, the court considered the definition of a common carrier in the Interstate Commerce Act, which was, in its material parts, as follows: “The term ‘common carrier by motor vehicle’ means any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property or any class or classes thereof for compensation, * * The court said this:

“It is well established that a ‘holding out’ may be accomplished by advertisement or solicitation through agents, but these tests are neither determinative nor exclusive. A ‘holding out’ may result from a course of business or conduct. A definition of the term ‘holding out’ appears in Northeastern Lines, Inc., Common Carrier Application, 11 M.C.C. 179 (1939):
“ ‘Question arises as to the meaning of the words “holds itself out,” as applied to a common carrier. They clearly imply, we believe, that the carrier in some way makes known to its prospective patrons the fact that its services are available. This may be done in various ways, as by advertising, solicitation, or the establishment in a community of a known place of business where requests for service will be received. However the result may be accomplished, the essential thing is that there shall be a public offering of the service, or, in other words, a communication of the fact that service is available to those who may wish to use it.’ "

See also, State ex rel. Anderson v. Witthaus, 340 Mo. 1004, 102 S.W.2d 99, 102, where it was said, “If the carrier carries goods as a public employment, undertaking to carry goods for persons generally, and holds himself out to the public as ready to engage in that business as a business, and not as a casual occupation, he comes within the definition of a common carrier.”

The petition in this case does not allege facts which if found to be true would authorize a finding that the defendant engaged “in the business of a common carrier in intrastate commerce on any public highway in this state.” We need not rule whether the Report and Order of the Commission constituted proof of the facts therein set forth because those facts would establish nothing more than what is alleged in the petition, and those allegations, if found to be true, are insufficient to authorize the imposition of a penalty for a violation of Section 390.051.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM:

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

EAGER, P. J., and FINCH, J., concur and DONNELLY, J., concurs in the result.


author: WELBORN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Ray W. SMITH, Appellant.
    No. 52119.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Robert B. Curtis, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   WELBORN, Commissioner.

This is an appeal from a judgment and sentence of 99 years’ imprisonment upon a jury’s verdict finding appellant guilty of murder in the second degree.

The appellant was represented at the trial by an attorney of his own choosing. The jury returned its verdict on October 13, 1965. On October 14, 1965, appellant appeared with his attorney and waived filing a motion for new trial and his right to appeal. The trial court thereupon granted allocution and imposed sentence.

A short time later, appellant changed his mind about accepting the sentence imposed and on January 8, 1966, he filed in the circuit court a “Motion for Court Records in Forma Pauperis.” In this motion he requested copies of various records in his case. He alleged that the records would verify his contention that he had been subjected to illegal interrogation upon his arrest. He also stated that he had been “blocked from filing his motion for a new trial.” The trial court sustained the motion only as to the transcript of the October 14, 1965 proceedings above mentioned.

On March 30, 1966, appellant filed in this court an application for special order to appeal as a poor person. He alleged, among other things, that he was deprived of adequate time to consult with his counsel before being sentenced. The motion was sustained and leave granted to file notice of appeal without payment of docket fee and the notice of appeal was filed.

On May 11, 1966, appellant filed a motion in the circuit court for the appointment of counsel on his appeal, alleging that “he is a pauper in the meaning of the law, without money, stocks, bonds or collateral whatsoever to hire the services of a licensed lawyer * * On May 18, 1966, the trial court overruled the motion, noting that the motion was not verified “and stating no facts, only conclusions, as to indi-gency, and judicial notice being taken that defendant did employ counsel of his own choosing at and during the trial * *

Application for appointment of counsel then filed in this court was overruled “without prejudice to defendant’s right to file a verified motion in the Circuit Court of Texas County pursuant to S.Ct. Rule 29.01 (c).”

Subsequently, the transcript of the trial proceedings was filed, and appellant filed a pro se brief, alleging, as one of five grounds of error, that he had been denied the right to counsel on his appeal.

Supreme Court Rule 29.01, as amended July 9, 1963, effective March 1, 1964, recognizes the right of an indigent defendant to counsel on appeal and imposes upon the trial court the duty of appointing counsel in a proper case. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Bosler v. Swenson, (8th Cir.), 363 F.2d 154; Donnell v. Swenson, (W.D., Mo.), 258 F.Supp. 317.

Appellant has elected to ignore the suggestion of this court that he file in the circuit court a request for appointment of counsel which would meet the shortcomings found by the circuit court in the first application. In view of the failure of appellant to act in his own behalf and in view of the further fact that the appellant’s waiver of his right to file a motion for a new trial and the failure of his trial counsel to file such a motion resulted in a situation in which only the record proper would, in any event, be subject to review on direct appeal, we conclude that the failure to appoint counsel on this appeal does not require that the submission be set aside. We will, therefore, proceed with the review of the matters of record specified by Criminal Rule 28.02.

The information properly charges murder in the first degree. The jury’s verdict, finding appellant guilty of murder in the second degree, is in proper form. Murder in the second degree being an offense included in the charge in the information, the verdict is responsive to the information. The judgment and sentence is in proper form, the term of punishment being within the limits prescribed for murder in the second degree. § 559.030, RSMo 1959, V.A.M.S.

Appellant, by his pro se brief, has made certain allegations of error, which we have examined to determine whether or not they might afford some basis for relief under Supreme Court Rule 27.20(c).

The appellant’s objection that he was entitled to a panel of 47 is without merit. The panel of 34 members was adequate. § 546.180, subd. 1(1), RSMo 1959, V.A.M.S.

The suggestion that the evidence was insufficient to support the conviction is likewise without merit. The victim of the homicide was Earl Fielder. Appellant had not known Fielder prior to the day of the occurrence. Appellant went with two of his brothers to Fielder’s to purchase a truck. At Fielder’s request, they brought a bottle of wine and beer which appellant and Fielder drank. Additional wine and beer were purchased and consumed and appellant and his brothers and Fielder made a brief journey in appellant’s truck. Difficulties arose between appellant and Fielder about the former’s driving and the truck was stopped and appellant and Fielder got out. When a fight appeared imminent, appellant’s brothers left the scene and, except for appellant, there was no eyewitness to testify as to the fight.

In his opening statement, appellant’s attorney admitted that Fielder received a skull fracture, that many bones were broken in his face; that he had numerous cuts over the face; that his throat was cut crossways and up and down, the jugular vein was cut; that he received knife wounds in the thighs, the groin and scrotum; that he had a bullet wound in his upper right chest; that he died from one or more of such injuries and that the injuries were inflicted by appellant. The knife and gun with which the wounds were inflicted belonged to appellant.

The defense was self defense, with appellant the only witness on the subject. The jury was instructed on murder in the first degree, murder in the second degree, manslaughter and self defense. Obviously the jury could, as it did, reject that defense, and conclude from appellant’s admission and the circumstances of Fielder’s death that the defendant was guilty of murder in the second degree.

The appellant’s contention that he was deprived of an opportunity to file a motion for new trial is contrary to the appellant’s statement at the proceedings at which such waiver occurred. In any event, the question would not properly be before us on this appeal.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


text:
    STATE of Missouri, Respondent, v. Rickey Leroy COLBART, Appellant.
    No. 51920.
    Supreme Court of Missouri, Division No. 1.

      Feb. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Burton H. Shostak, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Kenneth H. Reid, Donald E. Bonacker, Springfield, for defendant-appellant, Rickey Leroy Colbart.
   HIGGINS, Commissioner.

Appellant was convicted by a jury of robbery in the first degree, a felony. Section 560.120, V.A.M.S. Pursuant to such verdict and upon a finding of prior conviction, the court assessed appellant’s punishment at thirty-five years’ imprisonment in the penitentiary and sentenced him accordingly. Sections 556.280 and 560.135, V.A.M.S.

Appellant does not question the sufficiency of the evidence inasmuch as his points “pertain solely to the various in-formations filed in the trial court.” The case was tried December 2, 1965, on a second amended information filed November 24, 1965, which charged Rickey Leroy Colbart and one Willie B. Brown with prior felony convictions and that on August 18, 1965, in Greene County, Missouri, they “did then and there wilfully, unlawfully and feloniously make an assault in and upon one Callie Anderson * * *, with their * * * hands and fists on and about the head and body of the said Callie Anderson and (they) * * * did then and there in the presence and against the will of the said Callie Anderson, by violence to her person, feloniously rob, steal, take and carry away, with intent then and there to permanently deprive Callie Anderson * * of the use thereof, good and lawful money of the United States of America, of some value, the property of Callie Anderson * 4 Contrary, etc., * *

Separate trials were accorded the accused, and the testimony of Mrs. Anderson alone was sufficient to warrant a conviction of appellant of robbery first degree as charged in the second amended information. She stated that she operated a small grocery store at 802 North Campbell, Springfield, Missouri; that on August 18, 1965, two Negroes, one being identified by her in the courtroom as the appellant, came into her store at about 2:30 p. m.; that appellant threw her to the floor “and he beat me— he throwed me on this side * * * and I still hurt right there, and here’s where they hit me (indicating) and I can’t lift as much as a pound of water. * * * He beat me and here’s a place right there and there was three places there (indicating over right eyebrow) where the blood was just a-streaming and I didn’t know it.” They then got into the cash register and appellant “come back to me. He said, ‘If you scream,’ he says, ‘I’m goin’ to kill you.’ * * * And he grabbed his hands around my neck * * They took her money from the cash register consisting of “about ten dollars in small change, pennies, nickels, dimes and quarters. I wouldn’t say whether there was any half dollars or not, and the other was in ones; about 6 or 8 dollars at the least. * * * I was still layin’ there and they went out and these boys come in and they picked me up and put me in my chair * *

Appellant concedes that the second amended information was sufficient in form and substance to charge robbery in first degree under the statute, but he advances several propositions whereby he says it “cannot be considered.”

He contends that the second amended information materially changed the charge against him in that the original and (first) amended informations charged him “only with common assault and then with some type of taking or robbery” and that neither apprised the accused that the state intended to charge him with robbery in the first degree of the complaining witness “by violence to her person”; that “by violence to her person” was added “secretively” to the second amended information to perfect the charge and without leave of court and notice to the defendant or opportunity to be heard; that he did not know of and was not arraigned on the second amended information; that he did not know of a charge of robbery in first degree against him because the original and (first) amended informations did not contain every ingredient and element essential to that crime.

It is, of course, necessary to allege all the elements of the crime intended to be charged. Criminal Rule 24.01, V.A.M.R., State v. Cunningham, Mo., 380 S.W.2d 401, 403 [4]; State v. Thierauf, 167 Mo. 429, 67 S.W. 292, 295. Otherwise, an accused’s constitutional right to be informed as to the nature of the crime attributed to him is violated. State v. Schultz, Mo., 295 S.W. 535, 536[2]; State v. Elgin, Mo., 391 S.W.2d 341, 343[3]; State v. Fenner, Mo., 358 S.W.2d 867, 870[5]; State v. Ballard, Mo., 394 S.W.2d 336, 342[11], And if such elements are missing, they cannot be supplied by intendment or implication. State v. Harris, Mo., 313 S.W.2d 664, 669 [2] ; State v. Cantrell, Mo., 403 S.W.2d 647, 650[7 — 11]. Nor may a distinctly different offense be charged by an amended information. State v. Thompson, Mo., 392 S.W.2d 617, 620[1].

The record in this case refutes appellant’s complaints and shows that the charge upon which he was convicted conforms to the foregoing requirements. The original information, filed August 20, 1965, charged that on August 18, 1965, in Greene County, Missouri, Rickey Leroy Colbart and Willie B. Brown “did then and there wilfully, unlawfully and feloniously make an assault in and upon one Callie Anderson * * * with their * * * hands and fists on and about the head and body of the said Callie Anderson, and (they) did then and there in the presence and against the will of the said Callie Anderson, feloniously rob, steal, take and carry away, with intent then and there to permanently deprive Callie Anderson * * * of the use thereof, good and lawful money of the United States of America, of some value, the property of Callie Anderson * * * contrary, etc. * * On that date appellant was present in Division II of the Greene County Circuit Court and Mr. Don Bon-acker was appointed to defend him. On September 28, 1965, appellant petitioned for and secured a change of judge whereby his case was transferred to Division I of the Greene County Circuit Court. On October 7, 1965, appellant was present in court with his attorney and was arraigned upon the original information to which he pleaded not guilty. The original information was amended October 20, 1965, to charge appellant and his codefendant as second offenders and, on November 24, 1965, a second amended information was filed which followed the original and (first) amended informations and added “by violence to her person” between the allegations of means and manner of felonious assault and the allegation of felonious robbery. On December 2, 1965, appellant was present in open court with his attorney and, prior to impaneling a jury, made admissions to the record of his prior conviction and that on August 18, 1965, Callie Anderson was “assaulted with hands and fists upon her body and that then and there she was robbed of money of some value against her will.” Upon completion of the admissions, “The defendant waived formal arraignment and entered a plea of not guilty.” Thereafter, the jury was impaneled and recessed for entry of the following into the record:

“THE COURT: Mr. Colbart, I want you to hear the admission made into the record by your counsel at this time. State your admission. MR. BONACKER: If The Court please, I have discussed this admission with Mr. Colbart prior to today, and I am sure he understands.
“The defendant is willing to admit that before August 18, 1965, he was convicted of a felony punishable by imprisonment in the penitentiary, sentenced therefor and imprisoned therefor in the Missouri Department of Corrections.
“He also admits that on or about the 18th day of August, 1965, a person did then and there wilfully, unlawfully and feloniously make an assault in and upon one Callie Anderson, d/b/a Anderson’s Grocery, with his hands and fists on and about the head and body of the said Callie Anderson, and the said person did then and there, in the presence and against the will of the said Callie Anderson, by violence to her person, feloniously rob, steal, take and carry away, with intent then and there to permanently deprive Callie Anderson, d/b/a Anderson’s Grocery, of the use thereof, good and lawful money of the United States of America, of some value, the property of Callie Anderson, d/b/a Anderson’s Grocery.
“And the defendant then specifically denies that he perpetrated either the assault or the robbery or was in any way involved.
“THE COURT: Thank you. Now, Mr. Colbart, do you have any objection at all to any of these admissions made by your counsel? THE DEFENDANT: No, sir. THE COURT: These admissions are satisfactory to you ? THE DEFENDANT: Yes, sir. THE COURT: And you understand them, do you ? THE DEFENDANT: Yes, sir. THE COURT: Mr. Bonacker, you have explained that this would create a situation where the Court would assess the punishment — you understand that, Mr. Col-bart, if it is proven ? THE DEFENDANT: Yes, sir. MR. BONACKER: Yes, Your Honor, we discussed this yesterday afternoon. He’s had all night to think about it. THE COURT: All right. Fine, thank you.”

Comparison of the second amended information with the original and (first) amended informations shows there was no material change in the charge. The earlier informations attempted to and did certainly advise appellant that he was charged with making a felonious assault on Callie Anderson with his hands and fists and at the same time that he did that violence to her, he did also feloniously rob her of money of some value. “The essence of the offense of robbery in the first degree, under both the statute and the common law, is ‘feloni-ously taking the property of another from his person, or in his presence, and against his will’ V.A.M.S. § 560.120, and the offense may be committed in two ways; one, by violence, or, two, by putting the victim in fear of some immediate injury to his person.” State v. Churchill, Mo., 299 S.W.2d 475, 478 [3, 4]. Even though the second information contained additional language, which admittedly removed all doubt from the sufficiency of the charge, it cannot be said that the earlier informations were not sufficient to advise appellant that he was accused of perpetrating a robbery from the person by the use of force and violence. And a prosecutor under Rule 24.02, V.A. M.R., and Sections 545.290 and 545.300, V.A.M.S., may with leave of court amend an information either in form or substance at any time before a jury is sworn to try the case, provided such amended information charges the same crime as attempted to be charged in the original indictment or information State v. Mandell, 353 Mo. 502, 183 S.W.2d 59, 61 [3, 4].

Appellant complains that no leave was sought or granted for filing the second information, but where the record reflects the filing of such information, as it does here, it is “presumed the trial court ‘permitted’ the filing in accordance with Rule 24.02.” State v. Ninemires, Mo., 306 S.W.2d 527, 530[5]; State v. Lettrell, Mo., 39 S.W.2d 556, 558 [8],

Appellant says also that he was not arraigned on the second amended information because he and his lawyer were not aware of such information. However, the record shows the admission read into the record by appellant’s counsel to be in the exact language of the second amended information, thus clearly showing knowledge of the exact charge upon which appellant was about to go to trial which indicated and justified the waiver of arraignment on the second amended information shown in the record.

Appellant argues also that he was on trial without having been informed of the nature of the accusation against him. In addition to the pretrial admission in the language of the second amended information, the record shows that by his general conduct of the case, objections, examinations, and cross-examinations, counsel defended a charge of robbery in the first degree with obvious skill and competence, and he closed his argument by: “Ladies and gentlemen of the jury, you were asked in plain, honest language to convict this man of a very, very, very serious charge, first degree robbery * * Such are the incidents indicative of acute perception of the nature of the charge, rather than of any claimed unawareness.

Additional review of the record as required by Criminal Rules 28.02 and 28.08, V.A.M.R., shows that the information is, in all other respects, in proper form and sufficient; defendant was accorded jury trial upon his plea of not guilty; the verdict is in proper form and responsive to the issues; the punishment is within legal limits; the motion for new trial was considered; and allocution was granted.

Judgment affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


author: HENLEY, Judge.

text:
    Bob K. REA, Plaintiff-Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Defendant-Appellant.
    No. 51673.
    Supreme Court of Missouri, Division No. 1.
    Feb. 13, 1967.

      Jo B. Gardner, Monett, for plaintiff-respondent.
    E. D. Grinnell, Jr., St. Louis, C. Wallace Walter, Harold F. Glass, Mann, Walter, Burkart, Weathers & Schroff, Springfield, for defendant-appellant.
   HENLEY, Judge.

This is an action for damages under the Federal Employers’ Liability Act (45 U.S. C.A. sec. 51 et seq.) for personal injuries arising out of a collision of diesel units of defendant’s freight train with diesel units of another train in the Cherokee Yards in West Tulsa, Oklahoma. Verdict and judgment were for plaintiff for $40,000. Defendant appeals.

The six points relied on and briefed by defendant may be summarized as errors in the admission in evidence of a mortality table; in giving instruction No. 2; in permitting plaintiff to make certain argument; and, in denying defendant a new trial, because the verdict was excessive.

Plaintiff, age 43, a resident of Tulsa, Oklahoma, was employed by defendant as a locomotive engineer. On February 15, 1963, at about 9:55 P.M., plaintiff, as engineer, with Garrett J. Williams, as fireman, and Melvin H. Owings, as brakeman, left Oklahoma City enroute to Tulsa on train No. 36 consisting of five diesel engines and freight cars. Somewhere between those two cities, possibly at or near Bristow, plaintiff and fireman Williams exchanged positions, and from that point on Williams, as acting engineer, operated the train from the engineer’s seat box on the right side of the lead engine until the engines were parked for the night at West Tulsa. After they had exchanged positions, plaintiff occupied the fireman’s seat box on the left side of the lead engine.

The train reached West Tulsa early in the morning of. February 16, at about 12:40. After entering the Cherokee Yards, brakeman Owings uncoupled the five diesel units from the balance of the train and the diesel units then proceeded forward to clear the first of two switches through which they would have to back up to reach diesel track No. 2 on which they intended to park the units for the night near the roundhouse. After clearing this switch the diesel units were stopped and the brakeman changed the switch to permit the back-up movement onto what is called the roundhouse lead track. The roundhouse lead track, as it approaches the roundhouse from the north,. splits at a switch into what is designated as diesel track No. 1 and diesel track No. 2. Diesel track 1 is actually a continuation or extension southward of the roundhouse lead track. At the switch which splits diesel track 1 from diesel track 2, diesel track 2 angles or breaks off to the southwest.

A consist of six diesel units with their brakes locked was parked on diesel track 1 approximately five car lengths, or 225 feet, south of the switch which splits the track into diesel tracks 1 and 2. Plaintiff and Williams had seen this consist parked in this position with its lights on after train 36 entered the yard and before their five diesel units began the southward back-up movement.

The switch at which the roundhouse lead track splits into diesel tracks 1 and 2 consists in part of a light and a “target” below the light. The color and position of the light and position of the target indicate the alignment of the switch tracks. On this occasion the light was “out” and a portion of the target was “missing.”

Backing the five diesel units southwardly through the first switch onto the roundhouse lead track, Williams, as acting engineer, stopped the units with the most southerly unit a few feet north of the second switch. The lead unit in which plaintiff and Williams were riding was the farthest north from this switch.

Brakeman Owings was on the southern end of the five diesel units as they backed up. and stopped at the second switch to permit him to “throw” the switch to cause the units to travel onto diesel track 2. He mistakenly or negligently threw the switch so that these units traveled onto diesel track 1 and into collision with the six parked diesel units, as a result of which plaintiff allegedly suffered injuries to his lower back.

Brakeman Owings was called to the stand by plaintiff. He testified, on direct examination, that he looked at the switch and thought it was then aligned to cause his units to continue onto diesel track 1, so he threw the switch to cause his units to travel onto diesel track 2; that he was mistaken about how the track was aligned when he looked, because it was, before he threw the switch, aligned so his units would have traveled onto track 2, and his throwing the switch in fact aligned the track so that his units continued onto track 1. He further testified, on direct examination, that the light on top of the switching mechanism was out, and that he was not sure whether the target was in place; that he had a lighted switchman’s lantern with him; that he could have determined accurately “ * * * by the target position or by the light * * ” how the switch was aligned had he “ * * * looked a longer period of time at it * * ;” that he was also required to, but did not, look at the switch track points as another test to determine how the track was aligned.

He further testified, on direct examination, that after throwing the switch he stepped back across the track to the engineer’s side of the units and gave the backup signal to acting engineer Williams; that his units then began the back-up movement and picked up speed to approximately five miles per hour before the collision; that he realized he had aligned the switch wrong as soon as he gave this signal and he immediately gave Williams an “emergency stop” or “washout” signal; that his units traveled approximately 200-225 feet before colliding with the six units parked on diesel track 1; that his units continued to back up at the same rate of speed; that he did not hear the brakes applied; that the collision jarred or moved the parked units back approximately eight feet; that acting engineer Williams said after the collision that he did not see the emergency stop signal.

Plaintiff testified that between the stop at the last switch and the collision the diesel engines built up a speed of three to four miles per hour; that at this speed the units could be stopped within 10 or 15 feet.

Defendant contends that the court erred in giving verdict-directing instruction No. 2, because it did not require the jury to find any specific act or acts of negligence causing the collision; that the instruction required a finding of general negligence only. The instruction was marked by plaintiff as “MAI 17.01 (modified).” MAI 17.01 is the verdict-directing instruction required by Civil Rule 70.01, V.A.M.S., to be given where a single negligent act is submitted. We need not set out the instruction in full; it does, as defendant contends, submit general negligence only, and plaintiff has, considering his contention to be mentioned immediately below, at least inaccurately noted its MAI number in violation of Civil Rule 70.01(d).

Plaintiff contends that he did not intend to submit specific acts of negligence; that he pleaded, proved, and submitted on the res ipsa loquitur doctrine. Because of the view we take of the case we need not decide whether the instruction is proper for a res ipsa submission. And, for that matter, defendant does not contend that the instruction is erroneous as a res ipsa submission.

Defendant contends in his reply brief (1) that plaintiff did not make a submissible res ipsa case; (2) that plaintiff, by his own evidence, showed specific acts of negligence which precluded his submitting under the res ipsa loquitur doctrine.

In Williams v. St. Louis Public Service Co., 363 Mo. 625, 253 S.W.2d 97, 102 [2], the court en banc said: “Submission under the res ipsa loquitur doctrine may not be denied, unless specific negligence, the real or precise cause is definitely shown by direct evidence.” However, where specific negligence, the real or precise cause, is shown definitely by direct evidence there is no room for the presumption or inference which the res ipsa rule affords. The plaintiff is bound by his evidence in a res ipsa case just as he is in an ordinary negligence action and cannot in effect say to the jury, “I have shown you exactly how this collision occurred but you are, nevertheless, still at liberty to speculate and presume that it may have happened some other way.”

Reference to the testimony of plaintiff’s witness, brakeman Owings, leads to the inescapable conclusion that plaintiff showed specific acts of negligence, the real or precise cause of the collision of the two trains. For this reason, plaintiff could not rely on and was precluded from submitting under the res ipsa loquitur doctrine.

Citing Conduitt v. Trenton Gas & Electric Co., 326 Mo. 133, 31 S.W.2d 21, and Weigand v. Pennsylvania R. R. Co., 3 Cir., 267 F.2d 281, plaintiff says even though he introduced evidence tending to show the cause of the accident, he did not lose the benefit of the res ipsa doctrine, because, by his evidence, the cause is left in doubt and is not clearly shown. The cause of this collision is not left in doubt; it is clearly shown by plaintiff; the cases are not applicable.

Plaintiff also contends that he was entitled to a directed verdict on the issue of liability, and that error, if any, in the instruction did not materially affect the merits of the action. We note in passing that plaintiff did not move for a directed verdict. Edens v. Myers, Mo., 365 S.W.2d 559. He insists that there was no dispute as to the facts and that counsel for defendant admitted negligence during oral argument. That portion of the argument to which plaintiff refers as an admission is: “Mr. Walter told you in his opening statement, there have been some mistakes and errors made. There is no question about that or else there would not have been this incident”. We do not construe this broad, general statement made during argument as a judicial admission of liability or of the truth of plaintiff’s proof of negligence. Some of the basic facts are in dispute and, under the circumstances, the credibility of plaintiff and his witnesses and the weight to be given their testimony was for the jury. Venditti v. St. Louis Public Service Co., 360 Mo. 42, 226 S.W.2d 599, 603 [11] and cases there cited. Plaintiff was not entitled to a directed verdict.

Since the case must be reversed and remanded for the reasons above stated, it is not necessary that we discuss defendant’s contention that the verdict is excessive; nor do we need discuss alleged errors in admission of evidence and in permitting certain argument.

The judgment is reversed and the cause remanded for a new trial on all issues.

HOLMAN, P. J., concurs.

SEILER, J., not sitting.

      . A round thin piece of metal, appearing from mately six inches in diameter. photograph to be white in color and approxi-


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Lewis Richard KEY, Appellant.
    No. 51760.
    Supreme Court of Missouri, Division No. 2.
    Feb. 13, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, Dennis J. Quillin, Sp. Asst. Atty. Gen., Clayton, for respondent.
    William Brandecker, Ronald E. Smull, Columbia, for appellant.
   BARRETT, Commissioner.

Upon an indictment charging that Lewis Richard Key by means of a dangerous and deadly weapon, a pistol, held up and robbed Evelyn Wiehardt of $512.75, the property of McCutcheon Supermarket in Fayette, a jury returned a verdict of guilty and fixed his punishment at five years’ imprisonment. Appellant’s counsel have briefed and argued six separate assignments of error and while three of the points have to do with the giving of instructions, they relate to and may he considered with the principal claim that the court should have directed an acquittal because “there was no substantial evidence of a conspiracy between appellant and William Thornton Harris” who, admittedly, “had the gun on” Mrs. Wiehardt and “asked me if I wanted to live and I told him to take the stuff.”

The state established these circumstances: On February 6, 1965, “Corky” Quinley, the manager, and Mrs. Wiehardt, a checker, closed McCutcheon’s Supermarket. It was about 9:30, “Corky” put the day’s receipts in a bag and proceeded to his parked car intending to put the bag in a night depository. But as he approached his car he saw “Someone laying on the floorboard in the back seat” and so he walked over to Mrs. Wiehardt’s car before she drove away and put the money bag in her automobile and started back to the front door of the store to call for help. Before he could get to the store door a man, he “could tell he was colored,” had gotten out of his car and “with his arm stretched out with his pistol in his hand” said “Stop right there.” Instead of stopping “Corky” ran to a nearby laundromat to call the sheriff. And as indicated, Mrs. Wiehardt said that when “Corky” “went off and the first thing I knew he was right on me.” The man was Harris, as a boy he had lived in Fayette, and Mrs. Wiehardt recognized him. Harris grabbed her bag and could not immediately find the store’s money bag but when he pointed the gun and asked if she wanted to live she told him “to take the stuff” and told him where it was. He got the bag and “ran right straight for the south corner of the (store) building” and, according to both “Corky” and Mrs. Wiehardt, in seconds, a white and green automobile “came up Lucky Street” from the side of the store building and “took him away” at a “very fast” speed and they were unable to get a license number or see who or how many were in the automobile.

But officers were alerted and just outside Columbia, 26 miles from Fayette, the appellant Key, age 23, driving his green and white 1954 Chevrolet was confronted with police-car roadblocks from both front and rear. A Columbia policeman described the encounter, “the driver (Key) got out and came back to the patrol car. * * * I asked him if it was his car and I asked him if he was by himself and he said yes.” But when the policeman turned his spotlight on he saw someone else moving in Key’s automobile. Other police officers arrived and found Jackie Harris and Larry Lewis “lying or squatting on the floor.” Searching Harris, the officers found a loaded 22 caliber Ruger pistol in his raincoat pocket. Harris refused to give his name. Also in the back of Key’s automobile the officers found an empty lady’s red purse (Mrs. Wiehardt’s) with some McCutcheon coupons in it and a McCutcheon money bag on the back seat. The bag contained $512.-75 in currency and silver and $2422.75 in checks. One of the officers said that Key had been drinking, it was possible that he was intoxicated but the officer said, “He wasn’t incapacitated.” The Howard County sheriff arrived shortly, identified Harris and talked to Key who said that the three of them had been in Fayette and “out in this part of town called New Addition” but he said that he had been asleep and that Harris had driven his Chevrolet to Columbia. Key had no knowledge of the money bag or the pistol and did not know that there had been a robbery in Fayette.

Key, Harris and Lewis all testified. They had been drinking during the afternoon in Jefferson City and Columbia and Lewis solicited Key tó take Harris to Fay-ette to see Harris’ sick baby. Harris bought gasoline just outside Columbia for Key’s 1954 green and white Chevrolet and Key and Lewis bought more gin and wine and Key “took them over to Fayette.” Harris’ wife lived in Columbia, his mother in Fay-ette but when they arrived instead of going to see the sick baby went out to “New Addition” and “went in the joint” where they drank beer and danced. Lewis returned to the automobile and was asleep in the back seat and Keys says that he went out, “laid in the front seat” and went to sleep. In the meantime Key had told Harris that he could drive the automobile to see the baby. In any event Key and Lewis went to sleep in the automobile and did not wake up until just outside Columbia. They saw no gun, had not talked about a robbery and didn’t know that Harris was thinking about it. Harris, serving eighteen years for robbery, was a state’s witness, most questions he refused to answer for the reason “it might incriminate me.” He said that he rode in Key’s automobile to Columbia and that there was no discussion with Key about robbing the supermarket.

It is in this background that Key insists that a verdict should have been directed because, he says, there was no evidence of a conspiracy between him and Harris and that the state is bound by Harris’ testimony that there was no discussion of a robbery. And in this connection, since there was no proof, it was error to instruct on the subject of conspiracy and other instructions permitted a finding of guilt without requiring the jury to find a conspiracy. And still further in this connection it is claimed that the court erred in giving Instruction 11 on circumstantial evidence, particularly in that it conflicts with other instructions and only required that the circumstantial facts “should” be consistent rather than that they “must” be found consistent. Thus in one way and another the appellant does not challenge the sufficiency of the evidence to the substantive offense of robbery with a dangerous and deadly weapon, he challenges proof of his connection with the offense for lack of sufficently probative evidence and proof of a conspiracy.

In this connection the burglary and liquor cases relied on by the appellant are helpful only insofar as they state and illustrate the general rules relating to circumstantial evidence and require the proof to show more than mere opportunity to commit the offense and create more than a suspicion of actual connection and guilt. State v. Rogers, Mo., 380 S.W.2d 398. But even in this connection, as the first Whitaker case (State v. Whitaker, Mo., 275 S.W.2d 316) illustrates, a conspiracy as with any other fact may be shown by circumstantial evidence. And here, unlike in the second Whitaker case (State v. Whitaker, Mo., 275 S.W.2d 322), there was deception on Key’s part as to the presence of Lewis and Harris, the admitted robber in his, Key’s, automobile. And unlike State v. Watson, Mo., 350 S.W.2d 763, while it is 26 miles from Fay-ette to the outskirts of Columbia, Key was in his own automobile with Harris and Lewis and the money bag and the inferences are stronger than his mere presence in an automobile stolen by another. It is true that a party, here the state, vouches for the credibility of its evidence and witnesses and if adverse is binding unless contradicted by other evidence. “In any event, it is clear that a party is not bound or concluded by the testimony of his witnesses in the sense that he may not present evidence in contradiction thereof; a party may prove his claim or defense by any proper evidence even though such evidence conflicts with the testimony given by his witness.” 32A C.J.S. Evidence § 1040(1), p. 765; State v. Jones, 363 Mo. 998, 1005, 255 S.W.2d 801, 804. For example in State v. Rowland, 174 Mo. 373, 74 S.W. 622, a robbery case, the prosecuting witness testified that the defendant “had nothing to do with robbing him.” In the first place the defendant Rowland first denied and then had to admit that he was with the prosecuting witness when he was knocked down and robbed. But, as to the prosecuting witness the court said that the state was not concluded by his statement and pointing to incriminating evidence said, “That there were two of them concerned in the robbery is clear, and that defendant was one of them we are fully satisfied.” And here the jury in reasoning upon the evidence, and thus finding some facts (Thayer, Preliminary Treatise On Evidence, p. 194), must have drawn the inference that there was more than an inconsistency in Key’s and Lewis’ claiming to have been drunk and passed out during the entire time Harris, on foot, was engaged in holding up and robbing “Corky” Quinley and Mrs. Wiehardt. Harris was then on foot, there was no one else there, Quinley and Mrs. Wiehardt on the one hand, Harris, Lewis and Key on the other hand even though Key and Lewis were in the automobile. And after Harris had pointed the gun and secured the money bag and ran to the south, the automobile, Key’s green and white Chevrolet, came up Lucky Street “fast” and in seconds “took him away.” Someone had to be driving the Chevrolet and Key and Lewis were the only persons in it.

And from these particular facts and upon all the attendant circumstances of this record the jury could reasonably find a concert of action or a conspiracy, so to speak, between Harris and Key. State v. Kinnamon, 314 Mo. 662, 671, 285 S.W. 62, 64. Thus in this case, unlike State v. Carr, Mo., 256 S.W. 1043, dependent entirely and wholly upon proof of a conspiracy (the defendant brain trusted the robbery), it could be found that Key was present not only abetting but actively participating in the robbery as by furnishing and driving his Chevrolet as the get-away automobile. State v. Tripp, Mo., 303 S.W.2d 627, 631. Aside from the cogency of other circumstances, here in contrast to State v. Pippin, 327 Mo. 299, 36 S.W.2d 914, the appellant Key was riding with and transporting the actual robber and the instruments with which the offense was consummated. In summary, the recent case of State v. Gregory, Mo., 406 S.W.2d 662, 665, furnishes more than an analogy: “[Wjhile there was no direct evidence of defendant’s actual participation in the robbery itself, there was direct evidence of his immediate presence at the time, from which the jury was entitled to draw an inference, if it so found, that he was aiding and abetting in the perpetration of the robbery.”

And in this background further analysis is unnecessary to demonstrate that there was evidentiary support for the instructions and they are not prejudicially, erroneous for the reasons advanced here. “This instruction defined the criminal liability of each of several persons who form a common design to effect a criminal purpose, and one of same in furtherance of such design alone commits the crime. This general instruction is followed by a concrete application of the rule to the facts in evidence.” State v. Hill, 273 Mo. 329, 339, 201 S.W. 58, 61.

Furthermore in these circumstances the appellant urges that the court erred in failing to instruct the jury as a part of the law of the case (Criminal Rule 26.02(6), V.A.M.R., RSMo 1959, § 546.070(4), V.A. M.S.) upon the lesser and included offense (Cr. Rule 27.01(e); RSMo 1959 § 556.230, V.A.M.S.) of an accessory after the fact (RSMo 1959, § 556.180, V.A.M.S.) because, he says, the evidence is as “consistent with that offense as with the offense charged.” As indicated, if the appellant was an accessory it was before the fact and he was therefore tried and convicted “as the principal in the first degree.” RSMo 1959, § 556.170, V.A.M.S.; State v. Tripp, supra. The insuperable difficulty with the appellant’s contention is that an accessory after the fact “commits an offense separate and distinct from the crime of the principal. Thus, the accessory must be charged and prosecuted for an offense not included in the criminal act of the principal.” 21 Am. Jur.2d (Criminal Law) § 126, p. 200; State v. Sullivan, 77 N.J.Super. 81, 185 A.2d 410, 415. “Certain it is he cannot be charged, or punished as the principal offender. His offense is distinctly his own, and he is liable to a different punishment; nor can he be indicted jointly with the principal for the principal’s offense.” State v. Umble, 115 Mo. 452, 462, 22 S.W. 378, 380.

The appellant’s other assignment is that the court erred in giving Instruction S-2, a conventional cautionary instruction on formal charge, presumption of innocence concluding with a paragraph on reasonable doubt. In brief it is objected that the portion on reasonable doubt after authorizing an acquittal describes the doubt as a “substantial doubt” not a “mere possibility of his innocence.” It is said that the language creates a presumption of guilt, shifts the burden of proof and conflicts with other instructions which in one way or another relate to reasonable doubt. In support of his claim the appellant cites certain dictionary definitions of “substantial” (as meaning “ample”) and “reasonable” (as meaning “moderate”) and State v. Nueslein, (1857), 25 Mo. 111, 124, from which this particular paragraph was taken. In the case from which it was taken it was held that in using the word “substantial” the instruction was not manifestly erroneous : “We cannot say that the jury was misled by the court informing them that the doubt must be a substantial doubt; this did not require anything more than a reasonable doubt of his guilt.” Since that case the objections made here and numerous others have been repeatedly lodged against that instruction and it has always been concluded that it “does not create an inference that something more than reasonable doubt is necessary for acquittal and it does not take away defendant’s right to have his guilt proved beyond a reasonable doubt.” State v. Davis, Mo., 365 S.W.2d 577, 580; State v. Hutsel, 357 Mo. 386, 208 S.W.2d 227.

Questions not required to be specifically assigned as error have been examined and the transcript shows compliance with all matters necessary to be considered by this court “upon the record before it” (Cr.Rule 28.02) and since no prejudicial error is found or demonstrated the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.