author: HOUSER, Commissioner. PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Gilbert V. GLENN, Jr., Appellant.
    No. 52748.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, Sam F. Hamra, Jr., Special Ass’t. Atty. Gen., Springfield, for respondent.
    William A. Moon, and Hilderbrandt & Smith, Springfield, for appellant.
   HOUSER, Commissioner.

Gilbert V. Glenn, Jr. was charged under the Habitual Criminal Act with grand, stealing of a 1965 Ford Mustang automobile.. Convicted by a jury and sentenced to 8: years’ imprisonment in the custody of the-department of corrections, he has appealed..

The State’s case tended to show the-following: Defendant and his wife Irene, residents of Springfield, were the holders-of a certificate of title to the automobile in question. For nearly five years defendant had known one John Davidson, who operated a gasoline filling station, and for a. year or two defendant had traded with him. In April, 1966 defendant wanted to sell his Mustang and buy a new car. Davidson,, although not a dealer, occasionally bought and sold automobiles. Defendant approached Davidson and asked him to make an offer on the Mustang. Davidson made: defendant an offer of $1,550 and told defendant that he would give him a down payment of $50, the balance when defendant’s new car was delivered. Defendant asked Davidson if he would make a down payment of $150, that being the sum required as a deposit on the new Oldsmobile he: was considering. On April 13 Davidson issued to defendant a check drawn on a Springfield bank for $150 marked “Payment on 65 Mustang Bal. 1400.00.” Defendant endorsed and cashed the check. Defendant did not give Davidson a receipt or “anything in return” for the check. There was an understanding that defendant was to continue to drive the Mustang for ten days or two weeks while the Oldsmobile was on order. On April 25 defendant told Davidson that his new car would arrive on April 27 and asked for Davidson’s assurance that the $1,400, would be available “to pay for the car.” Davidson gave defendant this assurance and on April 26 Davidson went to his bank, signed a promissory note for $1,100, had the proceeds of the note deposited to his account, and deposited an additional $300 so there would be $1,400 on deposit to cover the check. It was agreed that for the $1,400 defendant would give Davidson title to the Mustang. On April 27 defendant appeared at Davidson’s filling station to complete the transaction. Davidson made out a check payable to defendant in the sum of $1,400, and defendant delivered the certificate of title to Davidson.

The certificate of title was regular on its face. On the reverse side, under “Assignment of Title,” on the proper line for the signature of the seller, appeared the signatures of defendant and his wife. The assignment bore the signature and seal of a notary public below the recital “Subscribed and sworn to before me this 27 day of August, 1965.” It was evident that two names and a Springfield address had been typed in the space provided in the form for name and address of buyer, and that an attempt had been made to erase the names and the street address. The erasure was not complete. The first three letters of the first name of someone (“Gil * *”), the words “and Irene F. Glenn,” and an address on “Wayland,” were still faintly visible. Defendant explained to Davidson that at the time the notary took the acknowledgment defendant had been trying to sell the automobile; that he “already” had the certificate notarized; that the notary by mistake had placed the names of defendant and his wife in the space provided for the name of the buyer; that defendant had erased the names typed in and that Davidson could write in his own name in that space. Davidson accepted the title and the explanation. Before handing defendant the check Davidson said, “You will have that car in here this afternoon ?” Defendant answered that it might be in the morning, “according to what time we get back.” Defendant left the station and endorsed the $1,400 check, which was paid on the same day.

Thereafter on one pretext or another defendant put off the delivery of the automobile from day to day and from time to time. On May 6 Davidson, accompanied by a policeman, went to defendant’s home. The Mustang was parked in the yard. Davidson went to the door and rang the doorbell several times. No one answered. Davidson then raised the hood of the Mustang and started to put a “jumper” on the ignition, with the intention of taking possession of the automobile. Defendant appeared and asked what they were doing. The policeman explained that Davidson had come after the automobile which he had purchased and showed defendant the assigned certificate of title. Defendant stated that he had not sold Davidson the car; denied that he, defendant, had made the erasure on the assignment; stated that the title was “no good” because it had been altered; that he had lost the certificate of title in September or October of 1965; that he had kept the certificate in the glove compartment of the automobile “and since Davidson serviced this car for him in the past it was possible for [Davidson] to steal the title out of the glove box.” Defendant threatened to have both the policeman and Davidson arrested, and they left. Neither on that day nor at any time thereafter did Davidson gain possession of the automobile. On May 11 or 12 Davidson printed his name in ink in the space on the reverse side of the certificate provided for the name of the buyer.

Two or three days prior thereto, on May 9, 1966, defendant purchased a new 1966 Chrysler from Martin Motor Company, using the Mustang as a trade-in. Defendant at that time assigned to Martin Motor Company a duplicate certificate of title to the Mustang, dated November 19, 1965. Defendant had applied for a duplicate certificate of title on November 1, 1965, stating in his application that the original title certificate was “lost.”

Glenn defended the charge of automobile theft on the theory that at no time had he ever sold or tried to sell the automobile to Davidson; that he had never delivered the certificate of title or the possession of the car to him, and that his dealings with Davidson were solely referable to two loan transactions entered into between the parties. He testified that he borrowed $150 from Davidson and acknowledged that he received a check for that sum, but emphatically denied that the check bore the notation “Payment on 65 Mustang Bal. 1400.00” at the time he received the check. He said he would not have cashed or deposited the check had that notation been on the check. He asserted that he later applied to Davidson for another loan, this time in the amount of $1,100; that Davidson agreed to make the loan but required $300 interest; that when Davidson gave defendant the $1,400 check defendant cashed it and returned $300 in cash to Davidson, according to the understanding; that he gave Davidson a promissory note for $1,550 in April, 1966 in return for these loans. Defendant produced a printed form of promissory note, with the blank spaces filled in on a typewriter. He testified that the original note, of which this was a copy kept by defendant for his records, was executed and delivered by him to Davidson. It was dated “April 1966,” and purported to be a promise by G. V. Glenn, Jr. to pay to the order of John L. Davidson $1,550 on demand after date and if no demand is made then on April 28, 1967, with interest “Included.”

With respect to the certificate of title, defendant testified that a few months prior to November, 1965 he had been “thinking about another car,” and that is when and why he had the original title certificate notarized and “made out” ready for delivery to the purchaser; that after he decided not to get another car he went to the license bureau and asked what to do about it; that he was told that it would not be necessary to send in the certificate of title; that he typed in his name and that of his wife in the space provided for the name of the buyer on the assignment portion on the back side of the certificate and “stuck it in the glove compartment” of his Mustang. He said that a week or so later he looked for but could not find the certificate of title. Assuming that it was lost he made application on November 1, 1965 for a duplicate title. Defendant testified that the first time he saw the old certificate of title after he had put it in the glove compartment was on the day Davidson and the police officer came to try to take possession of the Mustang. Defendant denied that he ever delivered a certificate of title to the Mustang to Davidson.

The case was submitted to the jury under an instruction authorizing a verdict of guilty of grand stealing upon a finding that defendant did wilfully, unlawfully, felon-iously and intentionally steal by appropriating the property of John Davidson, to-wit, a 1965 Ford Mustang (described by manufacturer’s number) by exercising dominion over the property in a manner inconsistent with the rights of Davidson, without Davidson’s consent, in that defendant transferred the Mustang to Martin Motor Company with intent to permanently deprive Davidson of the use thereof, and authorizing an acquittal unless the jury found the facts so to be. No instruction was offered or given submitting the defense that defendant had never sold the automobile to Davidson; that he had never delivered a certificate of title properly executed, nor had defendant otherwise delivered any certificate of title to said automobile to Davidson, and that the negotiations and transactions by and between the parties were restricted to the lending of money by Davidson to defendant and the giving of a promissory note by defendant to Davidson.

Defendant makes three points. First, he contends that a verdict of acquittal should have been directed in his favor because under all of the evidence Davidson was not the owner of the automobile; that defendant was the owner thereof, and that defendant could not intentionally steal by taking the property of Davidson — could not steal his own property. Second, he complains of the failure to instruct on defendant’s theory of defense. Third, he attacks the main verdict-directing instruction on the ground that it assumed that the automobile was the property of Davidson, and that there was no evidence to sustain a finding that Davidson was the owner thereof.

For determination under Point 1 is the validity of an assignment of a certificate of ownership of a motor vehicle under § 301.210, RSMo 1959, V.A.M.S., which provides that in the event of a sale or transfer of a motor vehicle the holder of certificate of ownership “shall indorse on the same an assignment thereof, with warranty of title in form printed thereon, and prescribed by the director of revenue,” and deliver the same to the buyer at the time of the delivery to him of the motor vehicle, and that it shall be unlawful to buy or sell any motor vehicle unless at time of delivery there shall pass between the parties such certificate of ownership “with an assignment thereof,” and that a sale “without the assignment of such certificate of ownership, shall be fraudulent and void.”

Section 301.210 is a special statute, a police regulation “of the highest type” with which “absolute technical compliance” is required, the provisions of which are “rigidly enforced” and as to which there are “no exceptions to conform to intentions.” Allstate Ins. Co. v. Hartford Acc. & Indemnity Co., Mo.App., 311 S.W.2d 41, 46, fn. 4. The statute is “drastic, mandatory, and intended as a police regulation in the interest of the public welfare to prevent traffic in stolen automobiles,” Robertson v. Snider, Mo.App., 63 S.W.2d 508, 509, quoted with approval in Commercial Credit Corp. v. Blau, Mo.Sup., 393 S.W.2d 558, 563; “to aid in the apprehension of criminals, and to protect the innocent and guileless from the machinations and wiles of the wicked.” Evens v. Home Ins. Co. of New York, 231 Mo.App. 932, 82 S.W.2d 111, 116 [2],

Taking the state’s evidence at face value; assuming that this was an attempted sale and not merely a loan transaction, and accepting as a fact that defendant on April 27, 1966 for a consideration of $1,550 delivered the certificate of title to Davidson with express authority to insert his name in the space provided in the assignment for the name of the buyer and with the intention of passing title to the Mustang to Davidson, we are of the opinion that the attempted sale was fraudulent and void.

The purported assignment of August 27, 1965 did not make good the “sale” of April 27, 1966. In the first place, no sale had occurred on August 27, 1965. Section 301.210 commences with these words: “In the event of a sale or transfer * * This clearly expresses the legislative intent that the occurrence of a sale or transfer from the holder of the certificate of ownership to an identified, existing buyer or transferee is a prerequisite to a valid assignment. On August 27, 1965 there had been no “event of a sale” as contemplated by § 301.210. Furthermore, indorsement “[i]n the event of a sale” means indorsement at the time of a sale or so close thereto in point of time as to constitute one single transaction. In this case eight months intervened between the date of the execution of the assignment and the delivery of the certificate of ownership to a buyer. The in-blank assignment of August 25, 1965, eight months before the “sale” and without any existing buyer, was fraudulent and void. Such an in-blank indorsement is precisely the kind of loose practice § 301.210 is designed to prevent.

Secondly, a necessary party was missing. An assignment is a contract between two parties, an assignor and an assignee, involving mutual assent, (a meeting of minds), consideration and subject matter. 6 C.J.S. Assignments § 2, p. 1047. There must be an intention to make a present irrevocable transfer of the subject matter, on the one side, and an assent to receive it, on the other. Jordan v. Harrison & Platt, 46 Mo.App. 172; Miller v. Heisler, Mo.App., 187 S.W.2d 485. When a statute prescribes the necessary parties to an assignment there must be a compliance with the statute in order for an assignment to be valid. Porte v. Chicago & N.W. Ry. Co., 162 Wis. 446, 156 N.W. 469 [3], Under § 301.210 the necessary parties to an assignment of a certificate of ownership of a motor vehicle are a seller and a buyer. When the purported assignment of August 27, 1965 was made before the notary public there were two assignors but no assignee—no person to give his assent to receive title to the automobile. Nothing in § 301.210 supports the conclusion that a valid assignment can be made by making an assignment in blank to a nonexistent, unascertained, unidentified person at a time before the occurrence of an actual sale. Finally, the “assignors” on August 27, 1965 had no intention of making a present irrevocable transfer to any particular person.

Nor did the events of April 27, 1966 operate to pass legal title to the “buyer” Davidson. The delivery on that date of the certificate of ownership was ineffective. The null and void assignment dated August 27, 1965 was not revived or resurrected by the simple act of delivering the certificate to a buyer and the subsequent filling in of the buyer’s name in the blank space. A new act of assignment and a new acknowledgment by the notary—a contemporaneous assignment and acknowledgment— were necessary to validate the assignment. The delivery of the certificate with the null and void assignment dated August 27, 1965 had no more vitality and effect than the delivery of a signed but unacknowledged assignment, which has often been held insufficient to vest legal title in the buyer. Pearl v. Interstate Securities Co., 357 Mo. 160, 206 S.W.2d 975; Kahn v. Lockhart, Mo.App., 392 S.W.2d 30; Allstate Ins. Co. v. Hartford Acc. & Indemnity Co., Mo.App., 311 S.W.2d 41. In the latter case the court said: “Unless and until the assignment of the certificate of title is filled in, acknowledged, and delivered to the purchaser, no title passes.” 311 S.W.2d l. c. 46 [3]. The purported sale of April 27, 1966 was null and void and wholly ineffective to transfer legal title to the Mustang to Davidson.

The assignment having been a nullity, and no delivery of the motor vehicle to the buyer having taken place, the title to the automobile never left defendant and wife. They continued to be the owners of the Mustang until they delivered it and passed a properly assigned duplicate certificate of title to Martin Motor Company. John Davidson never acquired title to the property. If the state’s evidence is true, defendant’s acts were grossly dishonest and flagrantly duplicitous. He may very well have been guilty of a criminal act but on this evidence he cannot be convicted of automobile theft.

In thus ruling, we necessarily reject the state’s contention, citing Pearl v. Interstate Securities Co., 357 Mo. 160, 206 S.W.2d 975, that Davidson had implied authority to fill in his name as buyer on the assignment. The difference between the cases is that in Pearl there had been an actual sale and an existing, ascertained and identified buyer at the time the assignment was attempted. Not so here. When the assignment in blank was made on August 27, 1965 the name of the buyer was not and could not be filled in because no sale had been made; there was no buyer in existence. The purported assignment was made in advance of a sale, with the intention of filling in the assignee’s name when a buyer materialized. As indicated, such an assignment is a nullity which cannot be validated by the mere delivery of the certificate to a subsequent buyer and the post-sale insertion of the name of the buyer as as-signee, without a new assignment.

The first point disposes of the case and therefore we do not reach and need not pronounce upon the second and third points.

Judgment reversed and defendant ordered discharged.

WELBORN, C., concurs in result.

HIGGINS, C., concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: PRITCHARD, Commissioner. PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Robert D. GRAY, Appellant.
    No. 52984.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, Lawrence F. Gepford, Asst. Atty. Gen., Kansas City, for respondent.
    Lewis F. Randolph, Jr., St. Joseph, for appellant.
   PRITCHARD, Commissioner.

Appellant was convicted of the crime of forcible rape by the verdict of the jury under § 559.260. Having been found to be a second offender under § 556.280 he was sentenced by the court to five years’ imprisonment in the Department of Corrections. On this appeal, among other points, he challenges the submissibility to the jury of the state’s case against him.

The victim and prosecuting witness was Sharon Yvonne Huffman, age 27, who lived with her parents and three sisters. On January 7, 1966, she worked as a receptionist and switchboard operator for the Y.M. C.A. in St. Joseph, Missouri. On Tuesday, January 21, 1966, she met appellant when he came to the “Y” for a room, which was provided him. From that time until Sharon went out with him appellant came to the desk about every night, and on one occasion he brought her a bottle of Pepsi Cola. He then asked her for a date on Wednesday night, June 29, 1966, and the initial arrangement was that he was to pick her up at 8 p. m. after she attended church. Sharon on that evening drove her car to the church, but did not attend. She talked with a girl friend and then met appellant at the church, leaving her car for her mother to pick up. Defendant had a 1964 Buick car, two-door hardtop.

Sharon was dressed in hose, pants and girdle, half slip, bra, a two-piece cotton suit, and flats. Appellant had on slacks and a sport shirt. The evening was warm and the windows on appellant’s car were down at all times. The couple did not attend a movie as planned because appellant had only $1.96, and Sharon told him when he asked that she had no money. Instead, they went to Bodde’s Bar and Lounge, that being Sharon’s idea because she had been there before for dancing. They arrived at Bodde’s about 8:30 p. m., where they danced about every time the music came from the juke box. During the time they were at Bodde’s, Sharon had two Tom Collins drinks and appellant had a beer.

When they left Bodde’s about 10:30 p. m., appellant drove down the highway to Shock-ey Dodge car lot where he worked part time selling cars. That place was closed for business, but was lighted with a string of bulbs across the front and with a flood light on the office building. There was only one entrance driveway onto and from the car lot, and appellant pulled up thereon to the office building and backed his car in beside a truck on the second row of cars. He had told Sharon he wanted to show her some of the cars he sold. Immediately to the east of the lot was a vacant house; there were no lights on in the house on the west side of the lot, and to the south was open or vacant land. There were no lights over the row of cars in which appellant was parked.

Appellant offered to help Sharon unfasten her seat belt, but she did it herself. They did not get out to look at cars. Appellant then reached over and kissed Sharon who told him that she preferred that he did not kiss her on a first date because she did not believe in being that friendly at that time. Appellant paid no attention to her and kissed her again; she did not kiss him back. He then pulled her down on the front seat with her head on the driver’s side underneath the steering wheel. He yanked off her girdle with hose still attached, and her pants — her undergarments. He pulled up her skirt. She attempted more than once to get up from the front seat and he would push her down by her shoulders into the seat. Appellant said to Sharon r “Stop fighting so hard, damn it, or I will have to hurt you”; and “You better be good to me, baby. Be good to me, baby. Be good to me, baby.” While she was lying in the front seat Sharon reached her hand back and tried to open the door on the driver’s side. When she put her hand on the door appellant hit her hand off it and said, “Get your hand off the door, damn it.”

Prior to these events appellant had been a gentleman. Sharon asked him, begged him, not to do it, “Please don’t do it,” and he would not listen to her. She was pleading with him in a voice which could be heard by anyone in the lot. Prior to that evening Sharon had never had sexual intercourse with a man, and she told appellant that, and that he was then hurting her, and to stop. After the act had been completed, Sharon told appellant she had to go to the rest room and asked him to take her somewhere. He told her to go behind the car. She wanted to put on her clothes and appellant would not then let her out of the car. When she started to get out he told her not to open the door on that side as the dome light would come on. He told her he would open the door on the passenger’s side and hold the (dome light) button. down. She then went behind the car and put her garments back on. Afterward, she' got back into the car and asked appellant to take her home. He said it was early and that she didn’t need to go home yetr and suggested that they sit there and talk some more about going out the next week. They remained there for about one-half hour talking about the future date, then appellant took her home. Sharon did not keep the future date with appellant, and did not intend to — she told him she would go out with him just to make sure she got home all right.

Accompanied by her girl friend and her father, Sharon reported the incident to the police the evening following (Thursday). She then saw her physician, Dr. Benson, the next day, Friday, and he examined her and she went back to him three times.

On cross-examination Sharon testified that at the time of the occurrence the car windows were down. She did not scream real loud for help, and she did not kick, hit or scratch appellant, or tear any of his clothes. Other than knocking her hand off the door, appellant did not strike her, scratch her, choke her, or threaten her or any member of her family with a weapon. When she was taken home, appellant kissed her in the car, then walked her part way up the steps of her home. It was necessary that she pass through her parents’ bedroom, they being awake, to reach her bedroom, and she did not tell them (then) that she had been raped. (Sharon’s testimony here varies as to when she told her mother of the incident — that night, as she testified on redirect examination, or at noon the next day after she had talked with her girl friend, June.) Sharon went in her room and got ready for bed. The next day she went directly to the Y.M.C.A., and worked from ten until six o’clock.

On redirect examination Sharon testified that the reason she did not fight appellant was that she was afraid he would do something to her because he told her if she didn’t stop fighting him he would have to hurt her.

Dr. Benson testified he saw Sharon on July 1, 1966, and his pelvic examination showed the hymen was apparently torn in a couple of places; the perineum had several little tear marks in it, and the vagina was red as though it had been irritated. Apparently this was the first occasion that Sharon had of intercourse. He found no sperm and there was negligible bacteria. Sharon was upset at the time he first examined her. Appellant, by counsel, admitted at trial that he did have sexual intercourse with Sharon on June 29.

Upon his contention that the trial court erred in overruling his Motion for Judgment of Acquittal at the close of the evidence, appellant says, “A. The State failed to prove Prosecutrix made the utmost resistance of which she was capable and manifested the utmost reluctance to the sexual intercourse.” Under the facts and circumstances here, that Sharon was taken to an apparently deserted car lot, that appellant yanked off her undergarments, that he threatened to hurt her if she did not stop fighting, that he pushed her down repeatedly in the seat of the car, and that he struck her hand when she tried to open the car door, there was a sufficiency of evidence for the jury to find that appellant’s acts constituted forcible rape, and that Sharon, being afraid that appellant would hurt her, did everything within her power to prevent appellant from accomplishing his purpose. There was evidence of threats of personal violence here which distinguishes appellant’s cited case of State v. Amsden, Mo., 299 S.W.2d 498, 503, where that hypothesis in a given instruction was not only not supported by the evidence but directly contrary thereto. In State v. Beck, Mo., 368 S.W.2d 490, 493 [3], it was said, “This court stated long ago that ‘the “utmost resistance” doctrine does not apply where the woman is put in fear of personal violence, and her will thus overcome * *. “A consent induced by fear of personal violence is not consent; and though a man lay no hands on a woman, yet if, by an array of physical force, he so overpowers her mind that she does not resist, he is guilty of rape by having unlawful intercourse.” (Citing authority and cases).”’ Whether Sharon voluntarily submitted to appellant or whether she made the utmost resistance and manifested the utmost reluctance to have sexual intercourse were jury issues under the aforesaid facts and circumstances. The further contention that “B. The State failed to prove threats of force and violence from which the Prose-cutrix could have apprehended fear of death or great bodily injury” is answered by the Beck case, supra, and the evidence of threats, pleading and fear testified to by Sharon justifies the submission of the issue of forcible rape to the jury, i. e., an array of physical force so that he overpowered her mind.

The information here follows the language of said § SS9.260 in that it alleges appellant did unlawfully, feloniously and forcibly ravish and carnally know Sharon against her will. That allegation disposes of appellant’s last contention that “C. The information herein filed did not charge threats of force or violence.” Instruction No. 6, submitting the fact of threats of force and violence to the jury, follows State v. Beck, supra, and negatives the defense of consent, and allows the finding that the act was against her will. See State v. Lee, 288 Mo. 41, 231 S.W. 619, 621 [1]; State v. Holman, 230 Mo. 653, 132 S.W. 695, 696. The evidence here is not contradictory in nature or unbelievable, so as to require the corroboration of Sharon’s version of the incident within appellant’s cited case of State v. Burton, 355 Mo. 467, 196 S.W.2d 621, which case holds further that a case of rape may be made upon the uncorroborated evidence of the prosecutrix unless such evidence is contradictory in nature or leaves the mind of the court clouded with doubt. Appellant says that the case should be reversed and that he should be discharged considering Sharon’s cross-examination testimony that the reason she instituted this matter was that she did not want to be bothered with appellant any more. That suggestion is without merit as it goes merely to the credibility of direct testimony concerning threats of bodily harm as that and all other evidence bears upon the issue of consent. Appellant’s Point IV, raising the issue of the sufficiency of the state’s evidence, is overruled.

Appellant says the following voir dire question put to the jury panel improperly sought to cause the jury to speculate as to their acts in the event of certain contingencies (it is argued that it attempted to commit the jurors before they had heard the evidence, instructions of court or argument of counsel):

“This case being tried is a criminal case. The burden is upon the state to prove to each and every one of you if selected to serve on the jury panel beyond a reasonable doubt that defendant, Mr. Gray, did in fact commit the charge that we have filed against him assuming that the state from the evidence has shown beyond a reasonable doubt that Mr. Gray did commit the alleged act, are there any of you here, based upon this assumption, who could not return a verdict of guilty?”

The question is not analogous to the reversibly erroneous question put to the jury panel in State v. Katz Drug Company, Mo., 352 S.W.2d 678, 684 [4], In that case the question contained particular facts by way of hypothesis: that [if I prove] the defendant “sold goods, wares and merchandise which were not medicines or drugs and not items of immediate necessity, and if the Court instructs you that it is a violation of the law, will you convict?” (Emphasis added.) It was held that this was an improper attempt to commit jurors before they had heard the evidence, and the cases of State v. Heickert, Mo., 217 S.W.2d 561, 562, State v. Pinkston, 336 Mo. 614, 79 S.W.2d 1046, State v. Ramsey, 355 Mo. 720, 197 S.W.2d 949, and State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688, 694, were cited as exemplifying the type of condemned questions which would commit jurors to a verdict prior to the submission of evidence. Here the question hypothesizes no particular facts; it is based on an assumption of proof of a charge; and, in final analysis, it is merely an attempt to determine if the jury panel had any moral scruples against returning a verdict of guilty, not one attempting to commit the jurors in advance of hearing any evidence, arguments of counsel or instructions of the court. Compare State v. Wolfe, Mo., 343 S.W.2d 10, cert. den. 81 S.Ct. 1912, 366 U.S. 953, 6 L.Ed.2d 1246, cert. den. 82 S.Ct. 188, 368 U.S. 907, 7 L.Ed.2d 101, where, while it was held that a refusal to permit defendant to ask each prospective juror how he would vote under certain circumstances was not an improper exercise of discretion, yet that ruling saved to defendant the right to ask the whole panel if they would acquit if the state failed to prove the charge beyond a reasonable doubt. Point I is overruled.

Appellant claims that the court erred in •submitting this case to the jury under the second offender act. Reasons assigned are that the evidence thereof was received at a time prior to the jury being sworn and prior to the time appellant was placed in jeopardy on the offense charged; the court took judicial notice of State’s Exhibit 1 (documentary proof of previous conviction, sentence and commitment); and in admitting State’s Exhibit 1 into evidence and in failing to require an authenticated or •certified copy of court records where appellant was allegedly convicted of a prior offense; and assuming from State’s Exhibit 1 and statements of counsel for the state that the alleged Indiana conviction was for a crime which would have been a felony in this state.

Section 556.280 (as amended Laws 1959, S.B. No. 117, § 1) provides that “[i]f any person convicted of any offense punishable by imprisonment in the penitentiary, or of any attempt to commit an offense which, if perpetrated, would be punishable by imprisonment in the penitentiary, shall be sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor, and is charged with having thereafter committed a felony * * the trial judge shall determine the punishment for the subsequent offense, hearing and determining the evidence outside the hearing of jury prior to the submission of the case to it, and the court shall enter its findings thereon. If the finding is against the prior conviction, the jury shall determine guilt and punishment as in other cases.

Appellant was charged with the prior alleged felony of theft, and that he was convicted therefor and sentenced to a term of not less than one year nor more than ten years to the Indiana State Reformatory at Pendleton, Indiana, and was ordered to pay a fine of $50.00 and $35.60 costs.

The second offender act requires only that the trial judge determine its applicability prior to the submission of the case to the jury. State v. Wilwording, Mo., 394 S.W.2d 383. Here, the jury panel was sworn before voir dire examinations, and it is fairly inferable that the determination of appellant’s prior conviction in Indiana was made before the twelve veniremen were sworn to try the case. It has been held that this statute is procedural, State v. Adamson, Mo., 346 S.W.2d 85, and the proceedings thereunder do not place the accused twice in jeopardy, State v. Johnstone, Mo., 335 S.W.2d 199. Appellant suggests no prejudice to him by reason of the fact that the hearing and determination of the applicability of the second offender act occurred prior to the time when the jury which was to hear the case was sworn. His contention in this respect is overruled.

It does not appear that the court took judicial notice of State’s Exhibit 1. It was offered in evidence by the state and if properly authenticated is admissible under § 490.220. (§ 490.130 refers to court records, and is not applicable to the present proof as contended by appellant.) State’s Exhibit 1 is duly attested by Harold J. Anderson, Judge Pro Tern of the Madison County Circuit Court, who further certifies that Robert J. Duncan is the legal keeper and the officer having the legal custody of the original records of the Indiana Reformatory; and it is certified to by its clerk. It is signed by Robert J. Duncan, Senior Parole Officer of the Indiana Reformatory (that institution’s seal being also affixed), and Duncan certifies that he has the legal custody of the original files and records of persons committed to said penal institution and that the attached photograph, fingerprint record and commitment are copies of the “original records of Register Number 46673 Robert Dale Gray a person heretofore committed to said penal institution and who served a term of imprisonment therein.” These certificates of the record exemplifications of the public office (Indiana Reformatory) of our sister state, Indiana, being attested by the keeper of such records and bearing his seal, are in due form and cause the documents to be admissible in evidence as proof of a prior conviction and sentence thereon. State v. Hagerman, Mo., 244 S.W.2d 49, 54 (in which the recitals of the certificate are practically identical to those here), held that a prison record was sufficiently authenticated and shown to be the record of a public office where the exhibit was certified to by the “ ‘Warden of the State Penitentiary of Arkansas’ ” and recited that he was “ ‘the keeper of the records and office books kept in the office of Warden of the State Penitentiary of Arkansas, the same being a public office not appertaining to a court.’ ” In State v. Young, Mo., 366 S.W.2d 386, and in the there cited case of State v. Hendrix, 331 Mo. 658, 56 S.W.2d 76, there were no recitals in the documents offered to prove previous convictions that the at-tester was the legal custodian or keeper of the public records. State v. King, 365 Mo. 48, 275 S.W.2d 310, involved an attempted proof of prior convictions by an offer of minutes or memoranda of the St. Louis Court of Criminal Corrections, and no certified copies of the court’s judgments were offered. In 32 C.J.S. Evidence § 664, p. 867, it is said, “It has been held that the recital in a certificate to a copy of a document as to the official character of the officer as the legal custodian of it is prima facie proof of that fact, and that it is unnecessary to call witnesses to prove the identity of the custodian or his signature.” Under State v. Hagerman, supra, in the ruling of which this case squarely falls, there was a sufficient authentication or certification of State’s Exhibit 1.

The contention is made that the state failed to prove that appellant’s alleged conviction of a crime in the state of Indiana would amount to a felony in this state so as to make the second offender act, § 556.280, applicable. § 556.290 provides, “Every person who shall have been convicted in any of the United States * * * of an offense which,’ if committed in this state, would be punishable by the laws of this state by imprisonment in the penitentiary * * * ” shall be punishable as a second offender under § 556.280. “Felony” is construed by § 556.020 to mean any offense where one convicted thereof shall be liable by law to be punished with death or imprisonment in the penitentiary. § 556.040 defines “misdemeanor” as an offense punishable only by fine or imprisonment in the county jail, or both. State’s Exhibit 1, with' a copy of the commitment order attached, recites that appellant “is guilty of the crime charged, namely: Theft. It is by the Court, therefore, ordered and adjudged that the said defendant for the offense by him committed, to make his fine to the State of Indiana in the penal sum of $50.00 Dollars, that he be committed to the custody of the Board of Trustees of the Indiana Reformatory to be confined by them according to law for a period of not less than One (1) years nor more than Ten (10) years, and that_pay and satisfy the costs and charges herein, taxed at $35.60. The Sheriff of said Lake County is hereby charged with the due execution of the foregoing judgment. (Signed) John H. Mc-Kenna, Judge.” This commitment order is dated March 10, 1964. In Acts 1963 (Spec. Sess.) Indiana amended its larceny statutes by enactment of a comprehensive series on that subject. § 10-3030, Burns Indiana Statutes, Annotated [Acts 1963 (Spec. Sess.), ch. 10, § 3, p. 10], defines the various acts of theft. § 10-3039 of the Indiana Statutes [Acts 1963 (Spec.Sess.)] enumerates the penalties for the various acts of theft. Paragraph (1) thereof provides in part that if a person is convicted of theft of property not from the person of less than $100 shall be fined not more than $500 or imprisoned in the state prison for not more than one year, or both; or such person may be imprisoned in the state prison not less than one year nor more than five years, and fined in a sum not exceeding $500. Paragraph (3) of the penalty statute of Indiana, supra, provides: “A person convicted of theft of property of one hundred dollars [$100] or more in value shall be fined in any sum not exceeding five thousand dollars [$5,000] or imprisoned for not less than one [1] year nor more than ten [10] years, or both, and be disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.” It follows that since appellant was sentenced by Judge McKenna to imprisonment in the Indiana Reformatory from one to ten years that he was found guilty of theft of more than $100 under said Paragraph (3), and that the same would be a felony under Missouri’s penalty statute for stealing and punishable by imprisonment in the penitentiary, § 560.161, subd. 1(2), for not more than ten years nor less than two years if the value of the property is at least fifty dollars. There is no merit in appellant’s contention that his Indiana conviction for theft would not be a felony in this state. Point II is overruled.

Instruction No. 11 was given by the court as to verdict forms. Because no mention was made of the punishment, but only guilt was left to the jury, appellant says error was committed in that the former issue was withdrawn. Appellant was a second offender, and the matter of his punishment was for the court under § 556.280, and the jury had no concern therewith. It is proper, in such case, that the jury not be instructed as to punishment. State v. Hill, Mo., 371 S.W.2d 278. Point III is overruled.

By Point V appellant attacks Instruction No. 6 upon the asserted ground that it failed to require a direct finding that the intercourse was without the consent of the prosecutrix. Paragraph 2 of this instruction told the jury that before it could find appellant guilty of rape it must find beyond a reasonable doubt that he forcibly assaulted and had sexual intercourse with Sharon against her will. Cited is State v. Egner, 317 Mo. 457, 296 S.W. 145, where it was held that it was prejudicial error to fail to instruct upon the constituent element of lack of consent of the victim of rape. The refused instruction there was not covered by any other instruction. As noted, the matter of consent was covered by Instruction No. 6 by the words “against her will.” In the Egner case, supra, it was held that these submitted words mean exactly the same thing as “without her consent,” and are defined as the manifestation of the utmost reluctance and the greatest resistance on the woman’s part. 296 S.W. 146 [2], Instruction No. 13, offered by appellant but refused by the court, covered the same matter and the court was not bound repetitively to cover it. Appellant’s argument is that the further phrase “great personal injury” in Instruction No. 6 is different than the approved phrase “great bodily harm.” The evidence is sufficient to support the submission that appellant by threats of force and physical violence caused Sharon to submit to his desires through fear of great personal injury. There is no perceivable difference in the latter words and “great bodily harm.” The giving of Instruction No. 6 (and the refusal of Instruction No. 13) was not error. Point V is overruled.

It is impossible to understand appellant’s Point VI. He says the court erred in failing to instruct on the burden of persuasion or proof as required by Supreme Court Rule 26.02(6), V.A.M.R., in that the court failed to instruct upon concealment and failure to make an outcry. The court did instruct upon those two matters of defense in Instructions Nos. 7 and 8, given at the request of appellant. If the court covered the subjects it matters not who offered the instructions thereon, and no prejudice was occasioned to appellant because he was required or forced to offer the matters. Point VI is overruled.

Appellant offered Instruction No. 12, which was refused by the court, upon common assault upon Sharon (without an intent to ravish and carnally know her). As above set forth evidence shows there was substantial evidence that forcible rape had been committed by appellant. It was held in State v. Grant, Mo., 394 S.W.2d 285, 289 [10], that where the evidence showed that sexual intercourse was had forcibly and without the consent of the female, and all elements of the offense including penetration were proved (as here), the defendant was either guilty of forcible rape or nothing. “Since there was substantial evidence that the offense of forcible rape had been committed, the court was not authorized to instruct on assault with intent to commit rape.” See also State v. King, 342 Mo. 975, 119 S.W.2d 277, 284 [13], and State v. Adams, Mo., 380 S.W.2d 362, 370 [18], The court did not err in refusing Instruction No. 12, and Point VII raising that issue is overruled.

Instruction No. 13, offered by appellant, was also refused by the court. Appellant says this was error because the element of consent was in no manner covered by the main Instruction No. 6. The matter is disposed of by the above discussion of appellant’s Point V where it is held that the matter of consent was covered by Instruction No. 6 by the words “against her will.” Point VIII attacking the propriety of the refusal to give Instruction No. 13 is overruled.

Appellant says that Instruction No. 14 was improperly refused by the court for the reason that it properly declared the law and submitted to the jury the element of passive submission on Sharon’s part. That instruction first defined the term “ravished” as meaning the carnal knowledge of a woman by a man, forcibly and against her will. It then instructed that the jury should find appellant not guilty as charged if it believed there was any element of consent, or a passive submission on Sharon’s part to sexual intercourse with appellant. He cites no case holding that this instruction should have been given, but argues: “The evidence offered by the State in regard to the resistance by the Prosecutrix was meager and in most instances inconsistent in that although the Prosecutrix stated she attempted to resist the defendant; after the act, they carried on a friendly conversation, and that prior thereto they conversed. The failure of the Prosecutrix to make immediate outcry or complaint and the willingness of Prosecutrix to voluntarily remain with defendant after the act is evidence of a passive consent or submission on her part to the act not brought about by any violence or threats to her, and would properly justify submission of instruction number 14 to the jury.” Instructions Nos. 7 and 8, given at appellant’s request, told the jury that concealment of the alleged rape and failure to make an outcry, if believed, were inconsistent with his guilt, and the latter rendered the charge of rape improbable. There is no evidence of any conduct on Sharon’s part before and after the act tending to show that she was willing to have sexual intercourse, or that she passively submitted thereto. The fact that she conversed with appellant both before and after the act and that she remained with him thereafter, under the facts and circumstances, does not show passive submission. There was no error in refusing Instruction No. 14. Point IX is overruled.

Appellant says that his motion to dismiss the case at the close of the state’s opening statement should have been sustained because the facts outlined therein would not have been sufficient to sustain the charge in the information even if true. The facts outlined in the opening statement, which the state stated it would prove, -are very similar to those testified to by Sharon, above held to make a submissible case. There was no fact admitted which would show as a matter of law that the offense was not committed. In 23A C.J.S. Criminal Law § 1145(3), p. 379, it is stated, “The trial.court in a criminal prosecution has the power to direct a verdict on the opening statement of prosecuting counsel; but this power should be exercised only when it clearly and affirmatively appears from the statement that the charge against accused cannot be sustained under any view of the evidence consistent with it, and only when the opportunity to correct or embellish the statement has been given to the prosecutor subsequent to accused’s motion to direct a verdict.” See the comparable rule in civil cases, Hays v. Missouri Pacific Railroad Company, Mo., 304 S.W.2d 800; State ex rel. State Highway Commission of Missouri v. Fenix, Mo. App., 311 S.W.2d 61; and Bayer v. American Mutual Casualty Company, Mo., 359 S.W.2d 748. Point X is overruled.

Appellant objected to the following closing argument of the state upon the ground that the same was an expression of belief as to the guilt of appellant and therefore not proper:

“MR. HARRIS: Mr. Ball, in his opening statement, stated that he viewed the case as premarital relations, nothing else. I would not be here today if I believed that statement.”

The state says this is merely an answer to the personal opinion of appellant’s attorney that his view of the case was as premarital relations. No opening statement of appellant is contained in the transcript. His counsel did argue to the jury that, “The only thing unusual, the only way this case varies from a normal experience of this nature is that she is hollering.” (Italics added.) At any rate, the argument falls short of stating a personal belief of guilt based on facts a prosecutor knows which are not in evidence. See State v. Feltrop, Mo., 343 S.W.2d 36, 39 [10, 11], holding that such arguments based on the evidence are proper; and State v. Woods, Mo., 406 S.W.2d 593, 595 [3, 4]. Point XI is overruled.

Appellant contends that the trial court erred in restricting his counsel’s final argument in regard to the element of utmost resistance. He argued, “Utmost resistance? That means a kick—MR. HARRIS : Your honor, I object to what that means, as being just a kick. THE COURT: Sustained. Well, it means anything that will repel it, that’s what it means. Utmost resistance? Where is it? There is none there, none at all. There was a pushing though. Push, push, push. That did go on. It didn’t seem to make any difference there.” It is apparent that after the state’s objection was sustained appellant got his point across as to what would repel the assault. The trial court did not err to appellant’s prejudice by sustaining the objection as to a kick meaning utmost resistance. Point XII is overruled.

Appellant says the court erred in overruling his objection to the state’s final argument which alluded to Dr. Benson’s testimony that Sharon was not calm when he saw her on Friday. He objected on the ground that he made no reference to what Dr. Benson said in his argument, and here urges that it was not proper rebuttal. Appellant’s counsel argued to the effect that a woman who has been raped would not wait as long as the next day or afternoon of that day to- say something about it. “They talk about experience. If that is her first experience, man, she is going to holler, real quick. I think you can infer this from the evidence here.” Sharon’s physical state the next day when she saw Dr. Benson is relevant to the issue of fresh complaint, and the objected to reference to his testimony is proper rebuttal to appellant’s argument as to such complaint. Point XIII is overruled.

Alleging plain error affecting substantial rights, appellant says that the state’s argument (unobjected to) referring to appellant having on swimming trunks under his slacks, which was not in evidence, was prejudicial and entitles him to a new trial. There is no apparent or manifest injustice in the argument, although not supported by the evidence. He further says that there was plain error in the argument that Sharon told her mother of the incident when she went home the night thereof. As above noted, there was a conflict in Sharon’s testimony as to when she told her mother; on redirect examination she did testify that she told her of the incident that night. The argument was supported by the evidence and was not improper. Point XIV raises no plain error under Supreme Court Rule 27.20(c), V.A. M.R., and is overruled.

By his last point, appellant says that his trial counsel, Mr. Ball, was at that time a Special Assistant Attorney General involved in the case of State v. Forsythe, Mo., 406 S.W.2d 633, and therefore he was deprived of his constitutional right of assistance of counsel under State v. Crockett, Mo., 419 S.W.2d 22. No facts appear in this record concerning the manner of employment of appellant’s trial counsel by the state, if that be the case, or any other fact about the matter. On this direct appeal, the matter may not be considered. Point XV is overruled.

Complied with are the matters of review specified by Supreme Court Rule 28.02, V. A.M.R.

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.

       All statutory references are to RSMo 1959, V.A.M.S., unless otherwise noted.


author: HOLMAN, Judge.

text:
    Saundra EAKINS, a Minor, by Cecil Eakins, Her Next Friend, and Cecil Eakins, Respondents, v. Jacob L. BURTON, Defendant, and Western Fire & Casualty Company, Intervenor-Appellant.
    No. 52765.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1968.

      Downs & Johnson, Edward L. Downs, Gerald H. Johnson, Donald A. Fee, Cape Girardeau, for respondents.
    Jackson, Thomasson & Dickerson, Donald P. Thomasson, S. Douglas McLaughlin, Cape Girardeau, for intervenor-appellant.
   HOLMAN, Judge.

On December 12, 1966, plaintiffs obtained judgments totaling $50,000 against defendant Jacob L. Burton. Thereafter, Western Fire & Casualty Company filed a motion seeking to intervene and to set aside the aforementioned judgments. That motion was heard and overruled on January 10, 1967. Western has appealed.

A brief statement of facts will suffice. On July 29, 1965, a car driven by Saundra Eakins, then 19 years of age, collided with a car driven by defendant. Saundra and her father, Cecil Eakins, filed suit against defendant on July 25, 1966. Saundra sought $50,000 for her injuries and Cecil $15,000 for medical expenses and for other items recoverable under the circumstances.

Defendant had purchased the car he was driving from Leonard Vaughn, a dealer, on June 28, 1965, but had not obtained title on the date of the accident. Defendant apparently had no liability insurance but Western carried a “garage liability policy” on Vaughn. On the theory that he was an insured under the omnibus clause of Vaughn’s policy defendant requested that Western defend this action. Prior thereto he had employed a law firm to defend him in the suit. His attorneys had filed an answer and a counterclaim containing two counts. Western refused to defend this suit because its representatives thought it was not liable by reason of an exclusion in the policy which provided that no person other than the named insured would be insured with respect to an automobile, “possession of which has been transferred to another by the named insured, pursuant to an agreement of sale.” Also, Western admittedly assumed that this action would be vigorously defended by defendant.

On November 5, 1966, plaintiffs and defendant entered into a contract under the provisions of § 537.065 (all statutory references are to RSMo 1959, V.A.M.S.) whereby defendant agreed to dismiss his counterclaim, with prejudice, and plaintiffs agreed that if they obtained a judgment against defendant neither they nor anyone claiming under them would levy execution against defendant, except however, “it is specifically agreed by and between the parties that execution or garnishment proceedings in aid thereof may issue on any such judgment against any insurer which insures the legal liability of the defendant for such damage either at law or in equity.” Thereafter, on December 12, 1966, the parties appeared in court and defendant dismissed his counterclaim with prejudice. The case was then heard with each of the plaintiffs testifying on the issues. A judgment for Saundra in the sum of $40,000, and one for Cecil in the sum of $10,000, was then entered. Although Western did not know of the aforementioned contract it was kept fully advised of all proceedings and had been notified that a judgment would be taken.

Western, on December 15, 1966, learned of the judgments that had been entered and immediately served a reservation of rights notice on defendant, and on January 10, 1967, filed a motion by which it sought to intervene and to set aside the judgments and defend the action both on liability and damages. As heretofore stated, the motion was heard and overruled on that date.

The first point briefed by Western is that the trial court erred in overruling its motion because it had a right to intervene under Civil Rule 52.11(a), V.A.M.R. That rule provides, in part, as follows: “Upon timely application anyone shall be permitted to intervene in an action * * * when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action * * It is Western’s theory that it has a right to intervene because it is or may be bound by the judgment, and by reason of the agreement no one presented any defense or represented its interest in the action. It also contends that its motion was timely because it was filed shortly after it learned of the entry of the judgments without any actual defense having been made by defendant.

The cases cited by Western do not support its contentions. One case it cites is State ex rel. Farmers Mutual Automobile Ins. Co. v. Weber, 364 Mo. 1159, 273 S.W.2d 318, which is similar to the case at bar in many respects. In that case, under similar circumstances, we held that the trial court properly overruled the motion of the insurance company to intervene because the company did not have the “interest” required by the statute. (Section 507.090 is the same as Civil Rule 52.11 in the respects here material.) We there said that “such ‘interest’ does not include a mere consequential, remote or conjectural possibility of being in some manner affected by the result of the original action; to come within the above statute, the ‘interest’ must be such an immediate and direct claim upon the very subject matter of the action 'that intervener will either gain or lose by the direct operation of the judgment that may be rendered therein.” It was held that since the company would have an opportunity after judgment to litigate its liability under the policy its interest in the original action was “clearly remote and contingent, not proximate or direct or immediate.” That decision is actually contrary to Western’s contention. The case of State ex rel. Duggan v. Kirk-wood, 357 Mo. 325, 208 S.W.2d 257, 2 A.L.R.2d 216, cited by Western is clearly distinguishable. There it appeared that the party seeking to intervene was equitably entitled to recover the entire amount for which one of the parties was seeking to obtain judgment. Under those circumstances the party seeking to intervene had a direct interest and the court properly held that he was entitled to intervene. The case also states the rule, with which we agree, that the statute (rule) should be construed liberally to permit broad intervention.

Kollmeyer v. Willis, Mo.App., 408 S.W.2d 370, is also distinguishable from the instant case upon the facts. In that case it was held that the trial court did not err in setting aside a default judgment (within the 30-day period) upon motion of defendant, filed by the attorney for his insurer who was disputing liability under the policy. It appeared, however, that the company had no notice of the setting; that it had an understanding with defendant’s previous attorneys that they would defend the suit and if it were subsequently determined that the company was liable it would pay the attorneys for their services. This case does not support Western’s contentions.

Western says plaintiffs and defendant made a wrongful use of § 537.065. This contention seems to be based upon the fact that the agreement dispensed with the necessity of defendant making a defense to plaintiffs’ claims in order to protect his personal interests. We see no merit in that contention. The contract was of a type expressly authorized by the statute. Since the parties were authorized by law to enter into the contract, we hold that their conduct in doing so was not wrongful. See Farmers Mutual Automobile Ins. Co. v. Drane, Mo.Sup., 383 S.W.2d 714. Although defendant did not contest plaintiffs’ claims, we see nothing to indicate that the judgments were obtained by fraud or collusion.

It should be here mentioned that in the event plaintiffs seek to collect the instant judgments by execution and garnishment Western will have an opportunity to litigate the question of its liability on its policy. Upon the authority of Weber, supra, we accordingly hold, under the circumstances heretofore detailed, that Western did not have such an immediate and direct interest in this action as would support its intervention as a matter of right.

We also have the view that the motion of Western was not timely. It had notice concerning all the proceedings, including the fact that judgments were to be taken. Western apparently assumed that defendant would make a vigorous defense and that it could safely refuse to defend under the circumstances. As we view the situation Western took a calculated risk that defendant would contest the claims of plaintiffs and, when he did not do so, sought to have the court give it another chance to defend. We think it is obvious, under these circumstances, that to be timely the motion to intervene should have been filed before the judgments were entered. The case of Cuthill v. Ortman-Miller Machine Co., 7 Cir., 216 F.2d 336, cited by Western, does not support its contention of timeliness when applied to the facts of this case. In Cuthill it was held that a stockholder was entitled to intervene where he alleged that a judgment had been entered against the corporation as a result of fraud and collusion between plaintiff and those representing the corporation.

Western also contends that it should have been permitted to intervene under Civil Rule 52.11(b), which provides for permissive intervention, and that the court abused its discretion in failing to permit it to intervene. That subdivision of the rule also requires that the application be timely. Our ruling to the effect that Western’s motion was not timely is sufficient to dispose of this contention and it is therefore ruled adversely to Western.

The order appealed from is affirmed.

DONNELLY and EAGER, JJ., concur.

FINCH, P. J., not sitting.


author: PRITCHARD, Commissioner. PER CURIAM: EAGER, Judge.

text:
    STATE of Missouri ex rel. Chris BURKE et al., Respondents, v. Alfonso Juan CERVANTES, Mayor of the City of St. Louis, Missouri, Appellant.
    No. 52595.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1968.
    Eugene P. Walsh, Aubuchon & Walsh, St. Louis, for respondents.
    Thomas F. McGuire, City Counselor, James J. Gallagher, Associate City Counselor, St. Louis, for appellant.
   PRITCHARD, Commissioner.

Respondents, who are members of the City of St. Louis Fire Department (and claiming to be class representatives of the employees thereof), were successful upon their application for a writ of mandamus below in which the Mayor was directed by the Circuit Court to appoint a Firemen’s. Arbitration Board to consider grievances under § 290.350 et seq., RSMo 1959 (L.1963, p. 415, § 1 et seq.). The principal and determinative issue is whether those sections apply or whether the City of St. Louis, being a constitutional charter city, has exclusive power to deal with the matters presented by the firemen under the Civil Service provision of its charter. The construction of Art. VI, Sec. 22, Const. of Mo. 1945, V.A.M.S., as applicable to said statutes being in issue, this court has appellate jurisdiction.

Respondents, as relators below, filed their petition for a writ of mandamus on November 16, 1965. Therein they alleged that they, Chris Burke, Vernon Houchin, George Thiele and Joseph McMahon, are paid members of the Fire Department of the City of St. Louis, residents of that city; that they bring the action on behalf of themselves and each and all other persons similarly situated who signed the petition for arbitration (hereinafter mentioned); that such persons are so numerous as to make-it impracticable to bring them all before the court; that the rights which are the subject of this action are common to all members of the Fire Department; that plaintiffs have been fairly chosen and do adequately represent all other persons similarly situated who are paid members of the Fire Department.

It was further alleged that a dispute has arisen concerning wages and conditions of employment between members of the Fire Department and the Mayor and other officers of the city; that pursuant to said § 290.350 et seq., a petition for arbitration was signed by 850 members of the Fire Department (being greater in number than 51% of the employees of the Fire Department), and was sent to the former Mayor (Mayor Tucker) of the city on March 5, 1965. That petition recited the provisions of said § 290.350, and the signers, “being members of the St. Louis Fire Department, and members of International Association of Fire Fighters, Local #73, St. Louis, Missouri, do hereby authorize our representatives to seek arbitration for the purpose of resolving the following grievances: 1. Re-allocation — all ranks two grades. 2. Hospital and medical assistance. 3. Recognition of longevity.” Pursuant to the statute, four names were submitted as the signers’ choice of representatives: 1. Russell E. Egan, 4560 Chouteau; 2. Paul Preisler, 4274 Shenandoah; 3. Oscar A. Ehrhardt, 1401 Hampton; and 4. Rev. Trafford P. Maher, S. J., 221 North Grand. It was lastly alleged that, although requested, the Mayor “has steadfastly and arbitrarily without good cause or justification refused and failed to abide by the provisions of Section 290.350 to 290.380 inclusive, Revised Statutes of Missouri 1959 (1963 Supplement), and failed to appoint four members of a firemen’s arbitration board.”

Section 290.350, supra, provides: “Whenever a dispute exists concerning wages, hours of labor, or conditions of employment of members of a paid fire department of any county, city, town, fire district, or other governmental unit having a population in excess of twenty thousand or located in a county of the first class, and a request for arbitration is made by either party to the dispute, a firemen’s arbitration board shall be appointed as provided in sections 290.350 to 290.380. Request for arbitration may be made by written petition signed by at least fifty-one per cent of the employees of the fire department or by resolution of the county court, council, board, or other governing body having direction and control over the fire department.”

Section 290.360 provides that the chief executive of the county, city or town or other governmental unit involved shall appoint four members of the board, two of whom shall be from the list of four or more submitted by the employees, and a fifth member shall be selected by the four so appointed by the chief executive. § 290.-370 provides that the board shall conduct hearings and report its findings and recommendations in writing to such chief executive officer, which recommendations shall be advisory only and shall not be binding upon the county, city, town, fire district, or other governmental unit or the members of the fire department.

Article VI, Sec. 19, Const.Mo.1945, V. A.M.S., substantially the same as Article IX, Sec. 16, Const.1875, except that the population requirement was reduced from 100,000, provides: “Any city having more than 10,000 inhabitants may frame and adopt a charter for its own government, consistent with and subject to the constitution and laws of the state, in the following manner: * * By authority of the 1875 Constitution, the City of St. Louis adopted a comprehensive charter which was effective August 29, 1914. The provisions of the charter so framed and adopted have the force and effect of legislative enactments, Giers Imp. Corp. v. Investment Service, 361 Mo. 504, 235 S.W.2d 355, and the same presents a complete system of local self-government, Kansas City v. Field, 270 Mo. 500, 194 S.W. 39.

By Point I, appellant contends that the trial court order and judgment requiring him to appoint a Firemen’s Arbitration Board under said § 290.350 is in error because that statute is unconstitutional and void as to the city under the provisions of Art. VI, Sec. 22, Const.Mo.1945, V.A.M.S.: “No law shall be enacted creating or fixing the powers, duties or compensation of any municipal office or employment, for any city framing or adopting its own charter under this or any previous constitution, and all such offices or employments heretofore created shall cease at the end of the terms of any present incumbents.” It is said by appellant that by this constitutional provision (new in 1945) “the City of St. Louis and its various officers and employees are given a broad measure of complete freedom from State legislative control.” Undoubtedly that is true. Compare City of Joplin v. Industrial Commission of Missouri, Banc, Mo., 329 S.W.2d 687, where it was said that to construe the Prevailing Wage Act as applicable to direct employees of public bodies would make it unconstitutional as to all constitutional charter cities because of said § 22. The City of Joplin was seeking to have the Prevailing Wage Act declared inapplicable to wage rates of workmen employed by private contractors in the execution of contracts for construction of relief sewers, mains and submains for the city. It was held that the Act was more than a local matter, that it was a matter of public policy as to wages paid to workmen employed by contractors throughout the state on public works of any public body (not cities only), and that the city’s claim that requiring it to stipulate in its contracts for public works rates of pay, in accordance with the Act, would be in violation of Art. VI, Sec. 22 was without merit, because “Employment by private contractors is not municipal employment and as we have held only such private employment on public works is affected by the Act.” 329 S.W.2d 694 [9, 10].

Appellant further argues that the question of wages and working conditions of various employees is a matter of local concern. Respondents contrarily contend that said § 290.350 providing for the appointment of a Firemen’s Arbitration Board does not deprive local government of its right to manage fire departments, and “The purpose of the statute is rather to create statewide uniform labor practices and is thus outside the scope of Article VI, Section 22 of the Missouri Constitution, 1945, * * There is much conflict in the decisions as to whether fire protection in municipalities is peculiarly local, or of state-wide concern subject to regulation by the state. 16 McQuillin, Municipal Corporations, 3rd Ed. §§ 45.01 and 45.03. In 37 Am.Jur. § 110, pocket part, it is said that a majority of the cases holds that legislation concerning municipal fire departments is a matter of state-wide concern and that a general statute on the subject applies to home-rule municipalities. But in the referenced annotations, 100 A.L.R. 1078, 1084, and 141 A.L.R. 903, 904, no case is reported on the subject wherein there is a constitutional limitation upon the legislature concerning interference with the powers and duties of municipal officers such as is contained in Art. VI, Sec. 22 of the Constitution of this state. The cases there referenced and Professional Fire Fighters, Inc. v. City of Los Angeles, 60 Cal.2d 276, 32 Cal.Rptr. 830, 384 P.2d 158, relied upon by respondents are thus distinguishable.

Under the city’s charter, and said Art. VI, Sec. 22, the Mayor as the chief executive officer of the city cannot be required to assume the additional duty of appointing a Firemen’s Arbitration Board. The Mayor’s duties are defined by Article VII, Section 1 of the charter, “He shall exercise a general supervision over all the executive affairs of the city and see that each officer and employee performs his duty and that all laws, ordinances and charter provisions are enforced within the city.” The charter of the city provides for a Director of Personnel and a Civil Service Commission which has jurisdiction over the wages and working conditions of all employees including firemen, of the city. Pursuant to the charter provision, the Civil Service Commission has provided rules and regulations governing allocations in grade of employees as to classes, providing for employee appeals therefrom (and further appeal may be had under the Administrative Procedure Act, Chapter 536, RSMo 1959, V.A.M.S. See State ex rel. Scott v. Scearce, Mo.App., 303 S.W.2d 175). In determining grievances of employees, appellant is not required to go beyond the comprehensive provisions of the city’s charter relating to all employees of the city. ' As applied to constitutional charter cities, §§ 290.350 and 290.360 are unconstitutional and void as imposing duties upon a.municipal officer.

The judgment is reversed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

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

RANDALL, Special Judge, concurs.

EAGER, J., concurs in separate opinion filed.

FINCH, P. J., concurs and concurs in concurring opinion of EAGER, J.

DONNELLY, J., not sitting.

Concurring Opinion

EAGER, Judge.

I am inclined to feel that §§ 290.350 and 290.360 violate the prohibition of Art. 6, § 22 of the Constitution because their enforcement as to a charter city would result in “creating * * * any [a] municipal office * * rather than in requiring the Mayor to assume additional duties. These statutes, if enforced, would result in the appointment (creation) of an arbitration board of five members with specified functions and duties, although supposedly temporary. While thus functioning the board would nevertheless constitute a “municipal office.” I do not wholly disagree with the conclusion of the principal opinion that these statutes would also confer an additional “duty” on the Mayor, but there may be some doubt as to whether or not the “powers, duties or compensation” specified and protected in the Constitution would include a mere isolated act of appointment such as this. In any event, I agree that these statutes are unconstitutional as applied to a constitutional charter city.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Leo Robert WEBB, Jr., Appellant.
    No. 52964.
    Supreme Court of Missouri, Division No. 2.
    Feb. 12, 1968.
    Norman H. Anderson, Atty. Gen., Jefferson City, Richard E. Watson, Sp. Asst. Atty. Gen., North Kansas City, for respondent.
    Robert G. Duncan, Austin F. Shute, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
   EAGER, Judge.

Defendant was charged by amended information with stealing copper tubing or pipe of the value of $236; it was also alleged that he had previously been convicted of a felony, imprisoned therefor, and subsequently discharged. He was found guilty by a jury and, upon findings by the Court of the prior proceedings, he was sentenced to a term of seven years. Defendant was represented at the trial and is represented on this appeal by privately employed counsel. A motion for new trial was timely filed; we need not digest that, for it sufficiently raised the points now briefed on this appeal. One contention is that the evidence was not sufficient to show defendant’s participation in the crime, so we shall relate the evidence in some detail.

The Kansas City police received a call as 10:40 p. m. on April 26, 1966, to check for prowlers at the “rear” of 1601 East 8th Street. Two cars responded. One officer Wilbur Wright, got out and went south between two apartment buildings, towards 9th Street, while the other, Charles McKinnie, drove to a parking lot just east of 1609 East 8th, got out and walked west. Both thus approached a fenced storage lot of the Foley Heating & Plumbing Company, the address of which was 1516 East 9th Street. Officer McKinnie, walking “around the west side” of a four-car garage at the rear of the parking lot, saw two boys or men running in the fenced area; one went over the south fence, and one over the east fence; he started to chase the latter and thus went behind the garage where he immediately saw the defendant, Leo Webb, and his brother Jerry Lee Webb. The defendant was sitting on a long piece of two-inch copper tubing holding it with his right hand, and facing south; the brother was kneeling, facing north, with a hacksaw in his hand trying to saw the pipe. When the officer thus came upon the two, defendant stood up and both were arrested. At that time defendant said that all he was doing was sitting there watching some boys “steal copper.” The hacksaw was marked by the officer and it was later received in evidence as an exhibit.

Officer Wright, when he had walked between the buildings and reached the fence, saw three persons inside the storage lot taking pipes from the rack at the rear of the Foley building. These were subsequently apprehended, just how is not shown. Two were juveniles, one of these being another brother of the defendant. There was no objection to the evidence identifying these persons. The garage mentioned was at the northeast corner of the Foley storage lot; this officer saw the defendant brought out from the south side of that garage by Officer McKinnie. Neither officer saw the defendant inside the lot. The fence was a chain link fence, about 6 feet high, with barbed wire strands along the top. Sundry copper tubing and pipe were found outside the fence at the northeast corner of the lot. One officer took the arrested persons to the station while the other stayed for a time with Mr. Foley, who was called to the scene. The officers found a 1966 Chevrolet pickup truck parked about one hundred and fifty yards from the place of defendant’s arrest. This truck bore the painted inscription: “Leo R. Webb, Centerville, Missouri.” It carried no Missouri license plate.

Donald E. Foley testified: that he was the Vice-President and part owner of the Foley Heating & Plumbing Company, a corporation; that it owned the pipe; that when he arrived on the scene he met the officers and was taken to the northeast corner of the lot, where he saw copper pipe on the ground outside the lot; that they found more pipe inside the lot which had been taken from the rack; that he and the officers took the pipe inside the shop and laid it on the floor, where it was photographed by the police the next day; that the pipe which they brought from outside the lot to the shop consisted of 120 feet of two-inch pipe and one hundred feet of one-half inch pipe; that the two-inch pipe cost them $1.80 per foot and the half-inch pipe twenty cents per foot; that he was present when the photographs were taken. He further testified that the pipe was regularly kept in the rack in full lengths, that some of the pipe which they carried in had been cut and “burred,” and that other pieces had been doubled up and bent.

It was further shown by the testimony of Donald R. Powers, a detective who made an investigation on the next morning, that he checked the lot “for security” and found that a section of boards had been removed at or near the northeast corner of the fence at a point where the fence ran about two feet above the ground; also, that there were “fresh” scuff marks in the soil there, not yet dried, indicating that entry had been made at that point. This witness also testified that there were saw marks on some of the pipe; he took several photographs none of which, incidentally, have been sent here on this appeal (an omission which is entirely too common with reference to documentary and photographic exhibits in criminal appeals).

Two police reports were produced by the officers and used by them on the stand. Upon request of defendant’s counsel, these were freely furnished to him for his examination. One was a so-called larceny report, and the other an “investigation” report prepared by the Detective Department. The latter report contained hearsay statements (brought out by defense counsel on cross-examination) to the effect that Ronald Webb, defendant’s brother, had borrowed defendant’s truck that night, and that defendant got a call from some unknown person at about 10:00 p. m. that his brother was down on 8th Street “hot rodding” in his truck; also, that defendant and his other brother went down there, found the truck, saw the boys “behind the garage,” walked over towards them and were arrested; further, that defendant denied “any part in the theft.” The source of these statements was not shown. Defendant did not testify. After these matters were shown on cross-examination, and without objection, the State offered the report as an exhibit. The Detective who testified was not asked about these statements in the report; Officer McKinnie denied hearing any statement from defendant about the telephone call and the related matters; he did recall that the defendant said he had “just got there,” and that he was looking for his brother, but he also recalled the prior statement of the defendant that he was just sitting there watching “the boys steal copper.”

The first point raised by defendant’s counsel is that the Court should have given an alibi instruction. No such instruction was offered and the record does not show that an instruction on that subject was even requested. Under these circumstances it is clear that the Court was not in error in failing to give one. State v. Harris, Mo., 356 S.W.2d 889; State v. Keck, Mo., 389 S.W.2d 816; State v. Westfall, Mo., 367 S.W.2d 593; State v. Johnson, Mo., 234 S.W.2d 219; State v. Hutchin, Mo., 353 S.W.2d 701; State v. Fields, Mo., 293 S.W.2d 952. In Harris, supra, it was said that a “request” for an instruction “consists of preparing and presenting to the court a written instruction with the request that it be given.” (356 S.W.2d loc. cit. 891) That precise point is not involved here, for the record does not show any request whatever. We deny this point of defendant for the reasons just stated, but we note also in passing that (on the State’s evidence, undenied) defendant was found at the scene, just outside the fence, and at a point where sundry copper pipe had been deposited after its removal from the rack and lot. On these facts, an alibi instruction would not have been warranted. For a closely analogous situation see State v. Bess, Mo., 387 S.W.2d 575, where it was held that the evidence did not justify an alibi instruction. In State v. Simon, Banc, Mo., 375 S.W.2d 102, cited by defendant, the defendant testified and his evidence tended to show that he was actually elsewhere at the time of the theft of a fur piece in a certain department of a large department store, even though he may have been in the building. However, the complete distinction between that case and ours is that the defendant there offered an alibi instruction (which was refused) in a form which the State, even on appeal, did not criticize. The first point of defendant is wholly without merit.

Next, defendant contends that the evidence of the State was insufficient because there “was no evidence that the owner of the property had not consented to the taking * * Counsel argue that proof of a taking without consent is essential to a conviction of stealing, citing State v. Loeb, Mo., 190 S.W. 299; that case is not applicable on the facts. The opinion simply recognized the rule that the taking must not have been done with consent, and that the burden is on the State. Also cited is State v. Patterson, 347 Mo. 802, 149 S.W.2d 332, which will be mentioned later. We note here that the lack of consent need not be proven by direct testimony of the owner, but that it may be established by circumstantial evidence giving rise to a reasonable inference that the taking was done without consent. State v. Emry, Mo., 18 S.W.2d 10; State v. Slusher, 301 Mo. 285, 256 S.W. 817. In fact, State v. Patterson, supra, cited by defendant, announces this rule at 149 S.W.2d loc. cit. 333, where the Court said: “Lack of consent need not be proven by direct evidence, but may be proven by circumstantial evidence. State v. Slusher, 301 Mo. 285, 256 S.W. 817.” The argument of defendant on this point is essentially that Mr. Foley did not expressly testify: that defendant and his brother were not employed by or authorized to act for his company; that he did not consent to the removal of the pipe; that the hole in the fence had not been “innocently” made; or that the corporation made any complaint. It is entirely clear that the facts in this case justified a fair inference of a lack of consent to the taking. At about 11:00 p. m. there were three persons inside the strongly fenced lot removing 20 foot lengths of pipe from the rack where they were regularly kept; some, after removal, bore saw marks and some had been bent or “doubled” over; the three persons immediately ran when the police arrived, leaving pipe scattered around the rack; considerable pipe had been carried or pushed outside the lot; defendant and a brother were positioned at a corner of the lot, near the place-where a recent breach had been made under the metal fence, holding and sawing, respectively, on a long length of the pipe; defendant’s pickup truck was parked nearby. And defendant, when thus surprised, made the remark that he was just “watching some boys steal copper.” The pipe was stacked on the rack, as usual, when Mr. Foley left that day at 5:30. A total of at least 220 feet of pipe had been removed from the rack, much of it apparently having been taken outside the fence. Pipe for use on plumbing jobs is not usually bent or “doubled up”; nor is it sawed and “burred” while lying on the ground. A very clear inference of a lack of consent arose from the facts as thus established.

Lastly, defendant says that an acquittal should have been directed because there was no substantial evidence of his participation in the crime. Apparently the contention is based, at least in part, upon statements appearing in the police report to the effect that one juvenile (Cervantes) who had been inside the lot, “denied knowledge of the Webb brothers,” and that someone (presumably defendant) told of the supposed telephone call stating that defendant’s brother was “hot rodding” defendant’s truck down on 8th Street, and that he went down there to investigate. After counsel for defendant had been permitted to examine the report in question, and had cross-examined at length concerning the supposed statements, the State offered the report in evidence, obviously that it might be shown in its full context. It was defendant, however, who brought out the evidence originally, on cross-examination.

In considering the sufficiency of the State’s case after a verdict of guilty, “the court accepts as true all of the evidence in the record tending to show defendant’s guilt, whether the same be circumstantial or direct in nature, together with all favorable inferences reasonably to be drawn therefrom. Defendant’s contradictory evidence, if any, is to be disregarded. If a submissible case is made out, the truth of the testimony and the reasonableness of the inferences to be drawn are exclusively for the jury. State v. Brewer, Mo.Sup., 325 S.W.2d 16, 20; State v. Morris, Mo.Sup., 307 S.W.2d 667, 668.” State v. Armstrong, Mo., 361 S.W.2d 811, loc. cit. 813.

Counsel for defendant cite two cases, State v. Odbur, 317 Mo. 372, 295 S.W. 734, and State v. Castaldi, Mo., 386 S.W.2d 392. These merely hold that evidence showing the mere opportunity to commit a crime, or giving rise to a “suspicion,” or merely showing defendant’s presence, is insufficient. We do not doubt the validity of that principle. In this case a substantial amount of copper pipe had been stolen, within the definition of our statute and our cases; the defendant was found, substantially at the very point where entry had been made, holding a long piece of the pipe while his brother sawed on it; his younger brother was inside the lot; his truck was parked nearby. The direct testimony of the policemen put the defendant very clearly in the picture as an affirmative participant.

In State v. Smith, Mo., 394 S.W.2d 373, a burglary case, the defendant received bottles of whiskey as they were passed' out of a window. His conviction of both burglary and stealing was sustained. The facts in the case of State v. Ramsey, Mo., 368 S.W.2d 413, did not establish the defendant’s participation so definitely as do those in the present case, yet they were held sufficient to establish his guilt, of attempted burglary.

The only fair inference here from the State’s evidence (and defendant offered none except by way of cross-examination)was and is that defendant’s participation in the stealing was established. This inference did not rest on circumstantial evidence, but upon direct, eyewitness testimony. Defendant’s real difficulty was that the jury did not believe his second-hand explanation, and that it did believe the officers.

The amended information, verdict, judgment and sentence are sufficient. The verdict was technically incorrect in that it found defendant guilty of “stealing over fifty dollars as charged in the information,” rather than of stealing property of the value of over fifty dollars. However, the information, the evidence and the instructions showed beyond question that defendant was charged, tried and convicted of the offense of stealing property of the value of more than fifty dollars. There is no reversible error in that irregularity. State v. Pinkerman, Mo., 349 S.W.2d 951; State v. Mitts, Mo., 347 S.W.2d 677; State v. Brewer, Mo., 338 S.W.2d 863. The precise point has thus been ruled by this Court at least three times.

The judgment is affirmed.

All of the Judges concur.