text:
    Al WALKER, d/b/a Al Walker & Associates, Appellant, v. CROWN SASH & DOOR COMPANY, Appellee.
    No. 4679.
    Court of Civil Appeals of Texas. Waco.
    Dec. 7, 1967.
    Rehearing Denied Dec. 28, 1967.

      W. B. Pope, Dallas, for appellant.
    Charles J. Winikates, Dallas, for appellee.
   OPINION

WILSON, Justice.

The questions in this action on a verified account are whether there is evidence or sufficient evidence of agency to support jury findings. We conclude the evidence is adequate, and affirm.

Plaintiff-appellee alleged it sold itemized doors and similar material to defendant-appellant, who filed a verified denial that he had contracted for or received the merchandise. Plaintiff then alleged the material was ordered for defendant by Ben Reynolds, who had actual and apparent authority to act as agent for defendant, and defendant was estopped to deny the agency. Jury findings were to the effect that plaintiff furnished the material to the “Raydon Street job” on which defendant had a contract to construct a house for Atkins; and that Reynolds purchased the material as defendant’s agent, acting within the scope of his agency and authority. There was a definition of terms, not material here.

Defendant points to his own testimony which might have authorized a contrary finding. The evidence is legally and factually sufficient to sustain the recited findings, however. Defendant’s testimony was directly contradicted. He had notice the material was being delivered and charged to him. There was evidence he paid invoices on other material ordered by Reynolds for him; that Reynolds was in defendant’s office when he ordered the material; that when Atkins told him the material was being billed to him, defendant indicated “it was all right with him”; that Walker and his attorney came to Atkins’ office and showed him the invoices which are sued on, defendant saying he owed them and “was going to pay Crown Sash & Door because they were after him for this money” ; that defendant received invoices each week and statements each month, but made no objections to plaintiff concerning any of the charges during three months the material was being ordered by Reynolds and used. There was proof defendant asked plaintiff “to separate” the Raydon Street job from another on Fuller Street; and that he made no objection to the charges.

Appellant makes some argument concerning the effect of a release. There is no pleading of release as required by Rule 94, Texas Rules of Civil Procedure, and no effect may be given to it as a defense.

Reversal is asked because three issues submitted are undispued. There are no objections to the charge, and the complaint is waived. Rule 274, Texas Rules of Civil Procedure.

Affirmed.


source: Caselaw Access Project

author: HENLEY, Presiding Judge.

license: Public Domain

text:
    Mildred Ann KREKELER, Plaintiff-Appellant, v. ST. LOUIS COUNTY BOARD OF ZONING ADJUSTMENT, and Suburbia Gardens Nursery, Inc., Defendants-Respondents.
    No. 52198.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1967.
    Rehearing Denied Jan. 8, 1968.

      Daniel P. Reardon, Jr., St. Louis, for appellant.
    Joseph B. Moore, St. Louis County Counselor, Robert N. Rosenblum, Asst. County Counselor, Clayton, for defendant-respondent, St. Louis County Board of Zoning Adjustment.
    Cupples, Cooper & Haller, Irving L. Cooper, Clayton, for respondent, Suburbia Gardens, Inc.
   HENLEY, Presiding Judge.

This is an appeal from a judgment affirming an order of the St. Louis County Board of Zoning Adjustment reinstating a building permit issued to Suburbia Gardens Nursery, Inc., and cancelled by the Director of Public Works. The appeal was submitted at the April, 1967, session; an opinion was written but not adopted, and the case reassigned to the writer. We shall refer to the parties as follows: plaintiff-appellant Mildred Ann Krekeler as appellant or as Mrs. Krekeler; defendant-respondent St. Louis County Board of Zoning Adjustment as the Board; defendant-respondent Suburbia Gardens Nursery, Inc., as Suburbia. The Director of Public Works will be referred to as the Director.

Mrs. Krekeler produced evidence that construction authorized by the building permit would result in depreciation of the value of her property in excess of $85,000; hence, jurisdiction of the appeal is in this court. Article V, § 3, Constitution of Missouri, V.A.M.S.; § 477.040 (all references to sections of the statutes are to RSMo 1959, and V.A.M.S.); Scallett v. Stock, 363 Mo. 721, 253 S.W.2d 143 [1].

This appeal is, in a sense, a sequel to litigation begun in January, 1962, and culminating in a decision of this court, en banc, on April 13, 1964, in Suburbia Gardens Nursery, Inc. v. County of St. Louis et al., Mo., 377 S.W.2d 266. The lands involved here are the same as those involved in that suit; the protagonists or active, principal participants or movers in that case are the same as those here: Mrs. Krekeler and Suburbia; the fundamental bone of contention between those parties in that case is the same as that in this case: whether Suburbia may construct and maintain on its premises an office building for the administration of its nursery business. The court held, at 1. c. 272, that quarters within which to consult with customers and other business visitors “ * * * is essential to the conduct of the nursery business * * * ” and that the county ordinance then in effect permitted the contraction and maintenance of a building on Suburbia’s premises “ * * * for office or administration purposes * * *, but the use must be restricted solely to the nursery business conducted on the premises.”

On July 13, 1964, three months after the decision of this court, Suburbia was again issued a permit by the Director to build; Mrs. Krekeler again objected and appealed to the Board; on February 19, 1965, the Board affirmed the action of the Director and approved the permit; in March, 1965, Mrs. Krekeler filed a petition for writ of certiorari in the circuit court seeking (1) review of the action of the Board, and (2) an order staying the order of the Board permitting Suburbia to construct the improvements described in its permit. The basis of that attack on the permit is not shown by this record. Evidence was heard on the request to stay and that and the petition for certiorari were taken under advisement. In July, 1965, subsequent to the event hereinafter first mentioned, Mrs. Krekeler dismissed her petition.

While the above proceedings were pending and under advisement, the St. Louis County Council adopted a new zoning ordinance effective April 25, 1965, in which Suburbia’s property was zoned “Flood Plain" and “Non-Urban,” that is, part of the property lies within one zone and part in the other. Under the new ordinance that part of the land lying within the “Flood Plain” zone may not be used for plant nurseries; that lying within the “Non-Urban” zone may be used for the following purposes, among others:

“5. Commercial vegetable and flower gardening, plant nurseries and greenhouses; not including any structure used as a salesroom.
* * * * * *
“17. Accessory buidings, land uses, and activities customarily incident to any of the above uses. * * * ” (Italics supplied.)

On May 6, 1965, the Director revoked the building permit issued in July, 1964, stating as reasons therefor that construction of the building had not begun and that the new ordinance prohibited the intended use. Suburbia appealed the Director’s action to the Board, requesting that the Board review and reverse the action of the Director and reinstate the permit. On August 20, 1965, the Board held a hearing on this appeal at which Mrs. Krekeler appeared by counsel in opposition to Suburbia’s request. Briefly, Mrs. Krekeler’s position before the Board on this occasion was that although this court had held that Suburbia could construct a building for use in its nursery business, the ordinance now in effect prohibited use of the land for a nursery and the construction of the building; that Suburbia had done nothing toward construction of the building authorized by the permit issued in July, 1964, and had no vested right or interest in the permit. Suburbia’s position before the Board was that, relying on the permit, it had in good faith engaged an architect who had prepared plans for the building, employed a builder to erect the building, and made arrangements with a bank to finance construction, all before the effective date of the new ordinance and at some expense; that actual construction of the building before the effective date of the new ordinance had been stayed by operation of law, because of the several actions of Mrs. Krekeler to review issuance of the permit; and that it had a vested interest in the permit.

The Board took the matter under advisement and on October 1, 1965, reversed the Director and reinstated the permit, stating as its reasons: “ ‘Petitioner [Suburbia] was prevented from building pursuant to said permit prior to the enactment of St. Louis County Ordinance #3552 (zoning) which became effective April 25, 1965, by operation of Section 64.120 of the Missouri Revised Statutes which provides that an appeal to the Board of Zoning Adjustment shall stay all proceedings in furtherance of the action appealed from. When permit No. 3313-64 was issued, an appeal was filed by Mildred Ann Krekeler to this Board and thereafter to the St. Louis County Circuit Court as Cause No. 265796 which prevented petitioner from proceeding with construction. To permit the revocation of the permit at this time would constitute an unreasonable deprivation of the use of petitioner’s property.’ ”

On October 18, 1965, Mrs. Krekeler filed the instant petition for writ of certiorari in which she prayed that the court set aside the order of the Board. She also prayed that the court restrain Suburbia from taking any action under its permit pending a hearing. In due course the writ was issued ; a return was filed by the Board and an answer by Suburbia. We need not summarize the allegations of the return and answer; in general, they denied the allegations of the petition and, of course, with its return the Board filed a copy of its decision and all proceedings had before it. In December the court heard evidence on the request for a restraining order and took that and other issues made by the pleadings under advisement. On March 29, 1966, the court filed a memorandum of its findings and conclusions and entered judgment affirming the order of the Board, reinstating the permit, and denying the restraining order. In general, the court found and concluded (1) that the decision of the Board was supported by substantial evidence; (2) that the new zoning ordinance operated prospectively only and did not cancel Suburbia’s permit; and, (3) that appeals to the Board and petitions for certiorari by Mrs. Krekeler had, by operation of law, stayed the effectiveness of the building permit while those proceedings were pending, thereby preventing Suburbia from going forward with construction before the effective date of the new ordinance. Mrs. Krekeler’s motion to vacate and set aside the judgment and for a rehearing was overruled and this appeal followed.

Respondent moves to dismiss the appeal on the ground that the notice of appeal states that the order appealed from is the denial by the court of appellant’s motion to vacate and set aside the order of the Board and for a rehearing. The order specified is not an appealable order and the appeal should have been from the judgment entered, as appellant acknowledges in her reply brief. However, liberality is exercised in such matters and the good faith of the effort of appellant to appeal is not questioned. Walker v. Thompson, Mo., 338 S.W.2d 114, 116 [2-5], The motion is overruled. Respondent’s motion to dismiss the appeal for failure of appellant’s brief to comply with the rules is also overruled. The brief is in substantial compliance with the requirements of Civil Rule 83.05(d) and (e), V.A.M.R.

In her first point appellant contends that the Board and the court erred in holding that appeals to the Board and petitions for certiorari by her effected a stay of the building permit while those proceedings were pending thereby preventing Suburbia from proceeding with construction before enactment of the new ordinance; that those proceedings did not effect a stay. She argues that Suburbia could have begun construction during the pendency of those proceedings and its failure to do so was its own choice for which she may not be faulted.

Section 64.120 provides that “An appeal [to the Board] shall stay all proceedings in furtherance of the action appealed from, * * Paragraph 3 of that section provides that any person aggrieved by a decision of the Board may attack its legality by writ of certiorari directed to the Board for review of its records. The provisions of the statute for review by certiorari do not provide whether issuance of the writ shall or shall not effect a stay. However, the general rule is that the issuance of a writ of certiorari to review the action of an inferior body operates as a stay of its action, absent legislation to the contrary. State ex rel. Northwestern Mutual Life Ins. Co. v. Bland et al., 354 Mo. 391, 189 S.W.2d 542, 544 [1-4], 161 A.L.R. 423; 14 C.J.S. Certiorari § 108, p. 245; 14 Am.Jur.2d, Certiorari, § 46, p. 817. The applicable statute does not provide that issuance of the writ shall not effect a stay; therefore, issuance of the writ caused a stay of the effectiveness of the permit during the pendency of certio-rari proceedings. The effectiveness of the permit having been stayed by the statute and rule, the Board and the court reasonably could have found that Suburbia’s failure to begin and complete construction of its building pursuant to the July, 1964, permit was not of its own choice, but that it was prevented from doing so solely by action taken by Mrs. Krekeler; that Suburbia could and would have begun and completed construction of the building before the effective date of the new ordinance, but for those actions; and, that “To permit the revocation of the permit * * * would constitute an unreasonable deprivation of the use of * * * [Suburbia’s] property.” Section 89.110 cited by appellant in support of her position that the pendency of certiorari proceedings does not effect a stay is not applicable, because chapter 89 applies only to certiorari to review the actions of zoning boards in cities, towns and villages; not to those proceedings in counties.

Suburbia has used the property as a plant nursery since shortly after its purchase for that purpose in 1961. It would not be contrary to the new ordinance to say that to permit now the revocation of the permit would constitute an unreasonable deprivation of use of the property, because: (1) that part of it lying within the area zoned “Flood Plain” may continue to be used as a nursery, a non-conforming use the continuance of which is recognized and permitted by § 1003.170 of the ordinance; and, (2) that part of it lying within the area zoned “Non-Urban” specifically permits its use for plant nurseries and those “Accessory buildings * * * customarily incident to * * * ” that use. In this respect we have not lost sight of the fact that the subsection of the ordinance permitting use of the area zoned “Non-Urban” for plant nurseries also states: “ * * * not including any structure used as a salesroom.” But this appears to be in conflict with that subsection permitting “Accessory buildings * * * customarily incident to * * * ” plant nurseries, which latter subsection of the new ordinance is in substantially the same language as that used in the ordinance construed by the court in Suburbia Gardens Nursery, Inc. v. County of St. Louis, supra, to permit the construction of a building for office or administration purposes. 377 S.W.2d 1. c. 272 [6].

Suburbia had engaged an architect who prepared plans for the building; it had employed a builder to erect the building ; it had made arrangements with a bank to finance the construction, all in good faith reliance upon the permit issued before the effective date of the new zoning ordinance. These actions are not taken without some expense and the assumption of some obligation. Suburbia has been engaged by appellant for several years in litigation which prevented first the exercise of the permit granted in 1962 and second the permit granted in 1964, both issued before the effective date of the new ordinance. This defense of its permits was not without some expense. Whether or not Suburbia acquired a vested right in the permit by virtue of these circumstances, these facts and the fact that the building authorized by the permit is essential to the conduct of its business would warrant a finding and holding by the Board and court that to revoke the permit would constitute an unnecessary hardship and an unreasonable deprivation of use of the property. We may not say that the decision is clearly contrary to the overwhelming weight of the evidence. We do say that appellant is in no position to object to Suburbia’s construction of the building on the ground that it should have acted on its permit, but did not, before the effective date of the new ordinance, when the reason it had not was because it was prevented from acting before that date by her taking a position squarely contrary to an ordinance which this court had construed as authorizing construction of a building in a case in which she was a party. Her action immediately following that decision smacks of a lack of good faith and there is nothing in the record to indicate otherwise. She is estopped from relying upon the delay for which she is responsible; she is estopped now from objecting to Suburbia’s use of the July, 1964, permit for construction of the building, the completion of which no doubt would have been accomplished long since, but for her action.

Appellant contends in another point that the Board and court erred in holding that Suburbia had a vested interest in the permit. In the first place neither the Board nor the court held that Suburbia had a vested right or interest, although Suburbia had taken the position before both that it had such interest; in the second, appellant did not assign this contention as error in her after trial motion. Both sides brief the point, but, as stated by Suburbia, we need not reach it in deciding the case, and do not.

In another point appellant contends that the adoption of the new ordinance had the effect of automatically cancelling and revoking existing or outstanding permits; that the Board and court erred in holding that the ordinance operated prospectively so as not to cancel this permit. The only authority she cites in support of this contention (other than § 1003.170 of the ordinance, pertaining to non-conforming uses) is McQuillin, Mun.Corp. (3rd Ed.) from which she quotes a part of § 25.156, pp. 497-8: “* * * the legality of a use is determined by the zoning law governing at the time of its commencement, not by the zoning law prevailing when a permit issues. Thus, a permit under which no work has been done does not avail to protect a nonconforming use against a zoning ordinance.” It is also stated in that section, at p. 498, that “ * * * it has been adjudicated that a permit to erect and construct a building for a particular business or use cannot be defeated by subsequent zoning laws, or a change of law.” Section 1003.-170 of the ordinance does not purport to cancel automatically existing permits, and we find no section which does purport to do so.

In Fleming v. Moore Bros. Realty Co., Inc., 363 Mo. 305, 251 S.W.2d 8, the court held that a building permit had riot been cancelled or revoked by the subsequent enactment of an ordinance under which the building authorized would not conform to land uses limited by the new ordinance. In so holding the court stated: “As a general rule, a zoning ordinance is operative from its effective date and has no retroactive effect, unless the ordinance expressly so states. 62 C.J.S. Municipal Corporations, § 226(16) (b), page 483. ‘In the construction of statutes the uniform rule is that they must be held to operate prospectively only, unless the intent is clearly expressed that they shall act retrospectively, or the language of the statute admits of no other construction.’ Jamison v. Zausch, 227 Mo. 406, 126 S.W. 1023, 1027; Lucas v. Murphy, 348 Mo. 1078, 156 S.W.2d 686, 690. The same rule applies to city ordinances. 37 Am.Jur. 833, Municipal Corporations, Sec. 195; 62 C.J.S., Municipal Corporations, § 443(c), page 857.”

We hold that the new zoning ordinance did not automatically cancel or revoke Suburbia’s permit; that it is still in full force and effect; and, that Suburbia may proceed with construction of the building authorized by the permit. To hold otherwise would be an unjust, absurd, confiscatory and oppressive result.

The judgment is affirmed.

SEILER and HOLMAN, JJ., concur.

STORCKMAN, J., not sitting when cause was submitted.

      . Mrs. Krekeler and Suburbia own adjoining tracts of land on the south side of U.S. Highway 40, between SchoetÜer and Woods Mill roads in St. Louis county. Suburbia’s tract consists of 10.74 acres and has a frontage of 856.43 feet on the highway; it is used to grow nursery products. Mrs. Krekeler’s tract consists of 72 acres 1200 feet south of the highway adjoining the Suburbia tract on the south; it is used by her family and the families of her married children for residence purposes.

      . In that case Suburbia had been granted in January, 1962, a permit to build a building for its use in the administration of its nursery business; Mrs. Krekeler objected to construction of the building.


author: BARRETT, Commissioner.

text:
    Richard P. SKAIN, Appellant, v. William WELDON et al., Respondents.
    No. 52550.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 8, 1968.
    James E. Conway, Boonville, Robert D. Kingsland, Jefferson City, Cullen Coil, Jefferson City, for appellant, Carson, In-glish, Monaco & Coil, Jefferson City, of counsel.
    Lon Hocker, St. Louis, for respondents.
   BARRETT, Commissioner.

In this libel action in which Dr. Richard P. Skain, a dentist, and in September 1964 also a member of the City Council of Jefferson City, sought $50,000.00 actual and $200,000.00 exemplary damages, a jury returned a verdict for the defendants and he has appealed. The sole assignment of error by Dr. Skain is that instructions 7 and 8 are manifestly erroneous and prejudicial and that therefore he is entitled to a new trial. The defendants are News Tribune Company, publisher of The Sunday News and Tribune newspaper, and Jefferson Television Company, then the corporate owner of television station KRCG, and Mr. William H. Weldon, then president of both corporate defendants and, admittedly, the author of the editorial complained of in this action. The controversy, the publishing of the editorial and this suit, arose out of Dean Lup-key’s attempt in September 1964 to secure a cable television franchise from Jefferson City and is a companion case to Lupkey v. Weldon, Mo., 419 S.W.2d 91. The fundamental difference in the two cases is that in Mr. Lupkey’s case reliance was on the accompanying news article as well as upon the editorial in the Sunday, September 20, 1964, issue of “The Sunday News and Tribune” and basically the defense in that suit was truth while here the defenses are (1) “that the editorial condemnation could not be reasonably considered to refer to the plaintiff” and (2) that there was no proof of actual malice, Dr. Skain being a public official, and therefore there was no right of recovery under the doctrine of New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. And for these latter reasons the respondents contend that plaintiff “failed to prove a case for relief” and that therefore any error in instructions is immaterial thus compelling, if the instructions are prejudicially erroneous, some consideration of the substantive law of libel and at least in part this cause upon its essential merits.

Given instructions 7 and 8, prepared and offered by the respondents, are as follows:

“Instruction No. 7.
“The Court instructs the jury that it is the right of the defendants to comment on matters of public interest, and this means the right to express opinions as to the acts of a public officer and to draw inferences as to his motives, whether such opinions or inferences are right or wrong, reasonable or unreasonable, provided they are made in good faith and based upon the truth.”
“Instruction No. 8.
“And even if you find that any statement of fact, on which comment or inferences were based, was untrue, and derogatory of the plaintiff, yet plaintiff, being a public official, cannot recover any damages unless he proves that the statement was made with actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

There are no specifically applicable MAI pattern instructions but the appellant contends that as adaptations they not only violate the spirit and theory of MAI they plainly violate Civil Rule 70.01(e), V.A.M. R. “where there is no applicable MAI so that an instruction not in MAI must be given, then * * * such instructions shall be simple, brief, impartial, free from argument, and shall not submit to the jury or require findings of detailed evidentiary facts.” And in this connection the appellant suggests what he considers appropriate and proper adaptations of certain pattern instructions, for example MAI 28.09. There are numerous objections to these instructions but basically the appellant objects that they are “highly argumentative, the language was favorable to defendants and the instructions did not submit ultimate issues in the simple manner ultimate issues are submitted in Missouri Approved Instructions.”

It is true that the subject matter of these instructions is not specifically covered by MAI, neither as the respondents suggest are they “an effort to‘improve’ an MAI form” as was true in several of the cited cases. Noting only briefly in this posture the respondents say that the instructions should be considered together, that it was only because of the plaintiff’s position that it was made “impossible to cast these two instructions in the style typical of MAI” thus tacitly conceding it would seem that at least technically they do not measure up to MAI standards. They say, however, that “prejudicial effect is to be judicially determined” (Civil Rule 70.01(c) ) and that these instructions are not erroneous as a matter of law. And finally respondents urge that “what defendants submitted in instruction 7 was the defense of fair comment on actions by public officials, i. e., the rule of law promulgated in the Cook case;” (Cook v. Pulitzer Publishing Co., 241 Mo. 326, 145 S.W. 480). As a matter of fact instruction 7 is a single sentence lifted from the court’s general discussion of the “right to comment” on the conduct of public officials (241 Mo. 1. c. 354, 145 S.W. 480) but “Instructions should not incorporate a discourse on general principles of law” (Taylor v. Commerce Trust Co., Mo.App., 319 S.W.2d 895, 897), or, as was said in Dill v. Dallas County Farmers’ Exchange No. 177, Mo., 267 S.W.2d 677, 680, “mere abstract statements of law do not make proper verdict-directing instructions.”

It is not necessary to further set forth and explore the contentions of the parties, it requires no analysis to demonstrate that instruction 7 is but an abstract, abstruse statement with no factual or other specific relevance to any determinative fact or issue directly involved in the trial of the merits of this cause. It is obviously argumentative — a lecturing type instruction— and it does not direct a verdict or require a jury finding, negatively or affirmatively, of any fact essential to the cause or of any issue involved in the cause. The instructions need not be further characterized, the- parties are represented by able, experienced counsel and it is not necessary to indicate just what specific instructions should be given, it is sufficient in disposition of this appeal to say, as plainly indicated by the rationale of the very recent decisions of Brown v. St. Louis Public Service Co., Mo., 421 S.W.2d 255 and Murphy v. Land, Mo., 420 S.W.2d 505 that instruction 7 or 8 is not within either the spirit or form of the philosophy and purpose of MAI and is manifestly and prejudicially erroneous and demands the granting of a new trial. While dealing with modifications or attempts to improve upon applicable pattern instructions consider also the rationale of Hunter v. Norton, Mo., 412 S.W.2d 163; Reckert v. Roco Petroleum Corporation, Mo., 411 S.W.2d 199; Motsinger v. Queen City Casket Co., Mo., 408 S.W.2d 857 and Leathern v. Longenecker, Mo., 405 S.W.2d 873, 876-877.

Upon the merits of the cause the respondents do not claim that the editorial is not libelous, even libélous per se, and necessarily they do not rely on truth as a defense as they did in the Lupkey case. Since there is no denial of its defamatory character only so much of the editorial is set out as is necessary to an understanding of the respondents’ specific claims that plaintiff failed to make a case for relief in that, one, as a matter of law the publication complained of did not refer to plaintiff, and, two, no malice was proved within the meaning of New York Times Company v. Sullivan. Bearing in mind that Dr. Skain was a member of the city council, the libelous editorial contained this paragraph:

“All nine councilmen have been contacted by News-Tribune reporters and only Mr. Hawes, Mr. Kliegel and Mr. Debo have stated that they will oppose waiving of the rules, which would allow execution of the Lupkey scheme.”

As a matter of fact the City Council of Jefferson City consists of ten counc.lmen and there were ten council members until Saturday afternoon, September 19, 1964, the day before the editorial was to appear. In truth Mr. Weldon had written the editorial and it was ready for front page printing in Sunday’s paper when he learned of Councilman Jobe’s death (notice of which together with his photograph also appeared on the front page of the Sunday edition). Because of Mr. Jobe’s death Mr. Weldon rewrote the editorial, of necessity changing references to the number of councilmen. On behalf of the respondents Mr. Weldon now claims that deducting from “all nine councilmen” the three named councilmen, Hawes, Debo and Kliegel, that “nine,” or the remaining six did not include and refer to the appellant Dr. Skain although he was not specifically excluded and neither was he favorably mentioned which would have required the changing of the next sentence “These three councilmen have always been men of integrity.” In support of their claim, as a matter of law it must be remembered, the respondents point to the lead and front page news report on the possibility of the council’s voting on the proposal for cable TV without a hearing in which six named councilmen were listed as “predisposed” to waiving the rules (voting on granting the franchise on the night, Monday, the proposal was introduced). Kliegel, Debo and Hawes were listed as opposed to waiving the rule and as to the appellant the news report said “Dr. Richard P. Skain contended that he was neutral when contacted and completely unfamiliar with details.” Because of these references it is said, reading the articles together, “that the editorial condemnation could not be reasonably considered to refer to the plaintiff.”

In the first place, the trial court, upon objection of plaintiff, excluded the news report from the jury’s consideration thereby limiting the jury to a consideration of the defamatory editorial and the oral testimony of Mr. Weldon on the one hand and Dr. Skain on the other hand. The admission or exclusion of the news article is not briefed and argued as a separate assignment of error and this is not to indicate whether the ruling of the court in this regard was error. The respondents now say, however, that the editorial upon which the action is founded was not the “entire publication” but that by dictionary definition and case law one meaning of “publication” is a “work published” and, as with certain contracts, can refer to and include several writings or publications. In support of these claims the respondents quote from Diener v. Star-Chronicle Publishing Co., 230 Mo. 613, 132 S.W. 1143, 33 L.R.A.,N.S., 216. But aside from the fact that the case was concerned with whether a demurrer should have been sustained to a petition, the quotation is not helpful to the contention here, to illustrate, the court said, “The whole article :is its own best interpreter. So, words take color from the occasion of speaking them.” (230 Mo. 1.c. 625, 132 S.W. 1. c. 1147.) Before these statements the court pointed out that it would determine the legal effect and force of a written instrument “provided those terms are unambiguous and are set forth in the petition (or here the editorial) as the foundation of the cause of -ction.” Also apropos here the court said that libel “may lurk in a double entente” or be “sprung by insinuation.” And finally the court said that the statement (in Julian v. Kansas City Star Co., 209 Mo. 35, 107 S.W. 496) that a former representative “did well in a legislative way” was “ambiguous, one natural sense of it being libelous.”

It is true that Dr. Skain is not referred to by name in the editorial but neither are the other five councilmen and after Mr. Jobe’s death the inclusion of Dr. Skain is a fair interpretation if “All nine councilmen have been contacted.” The editorial exonerates three men “of integrity” by name — it goes to the pains of adding the mayor’s name to this category and if it had been contemplated or intended that any of the other six councilmen were to be excluded from what the respondents call “editorial condemnation” it would have been a very simple matter to have added that councilman by name. At least in all these circumstances it may not be declared as a matter of law that the libelous editorial “could not be reasonably interpreted as saying anything defamatory about plaintiff,” and that for this reason alone the action must fail. On this very factual point the case is to be compared to New York Times Company v. Sullivan where “the evidence was constitutionally defective” because “it was incapable of supporting the jury’s finding that the allegedly libelous statements were made 'of and concerning’ respondent.” (376 U.S. 1. c. 288, 84 S.Ct. 1. c. 730, 11 L.Ed.2d 1. c. 711.)

New York Times Company v. Sullivan held that “The constitutional guarantees (First and Fourteenth Amendments) require, * * * a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice’ —that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” (376 U.S. 1. c. 279-280, 84 S. Ct. 1. c. 726, 11 L.Ed.2d 1. c. 706.) And that this is what the court set forth as a doctrine see also 95 A.L.R.2d 1450, 1453, and Pauling v. Globe-Democrat Publishing Co., 8 Cir., 362 F.2d 188, 192. The court in that case proceeded to review the evidence “to determine whether it could constitutionally support a judgment for respondent” and the court found that at most the proof showed “negligence” but not malice. It does not appear however that the Supreme Court’s concept of “malice” differs from what “malice” has always meant in this jurisdiction: “What plaintiff had to show to prove express malice was that the publication, insofar as it was privileged, was not made in good faith to give a fair and impartial account of the charges, trial, and result which were matters of public concern and about which it was privileged to inform the public, but that it was done with a wrong motive. That is what malice is; the presence of an improper motive. * * * ‘Proof of the falsity of the facts and knowledge of such falsity is proof of actual malice;’ (Cook v. Pulitzer Publishing Co., 241 Mo. 326, loc. cit. 362, 145 S.W. 480, 492) because that does, unquestionably, show a wrong motive. Therefore, if defendant has added material facts on its own authority, which it knew to be false, it would thereby go outside of its privilege and malice would be inferred. It is likewise a wrong motive, which would tend to show malice, to state something as the truth without knowing whether it is true, recklessly, and without any reasonable attempt to find out about it or with complete disregard of other known facts.” (Emphasis supplied.) Warren v. Pulitzer Publishing Co., 336 Mo. 184, 210, 78 S.W.2d 404, 418.

As the respondents urge, Dr. Skain was a member of the city council, a public official, and so he must show actual malice. Nevertheless, New York Times Company v. Sullivan is so wholly unlike this case upon its essential facts that it applies here only abstractly and in theory. There the alleged libel of Sullivan, one of three city commissioners of public affairs of Montgomery City, Alabama, was contained in a paid advertisement describing the maltreatment of Negro students who were protesting segregation. While the libel was contained in a paid advertisement and thus the newspaper may have been motivated by the profit motive of selling advertising space, it had no personal interest in the subject matter of the “publication.” In Warren v. Pulitzer Publishing Co., supra, the newspaper purported to report the facts of a church trial, the headline was “The Way Of A Minister With A Housemaid. She Couldn’t Resist His Eyes.” The respondents here, and particularly Mr. Weldon as president of both companies, are not in the position of either of the publishers in the Warren and Sullivan cases. The respondents here were not mere critics of the acts and conduct of a public figure and they were not simply reporting on the misconduct of a public official, they were the owners of a television franchise, KRCG and cable television in any form was not only a potential business competitor but as the editorial said “because we believe that pay television could eventually wipe out free television completely.” And so the respondents, both family-owned corporations, had a direct financial interest in the subject matter of the editorial. It is in this background that malice in the publication is to be determined.

As the respondents suggest there are more than eight hundred words in the editorial and it need not be set out here. The respondents tacitly concede the defamatory character of the editorial if it applies to Dr. Skain. It has been determined that a jury could reasonably find that the editorial did apply to Dr. Skain which by comparison describes him as a man lacking in integrity, one of a group of “conspirators” bent on carrying out a “matter which smells to the skies.” At one point the editorial says, “Of course there is a big payoff in this for Lup-key and we wonder what inducement he used on the Council members who have joined him.” At the end this question is put: “Yet they (so-called public servants) appear willing to cast aside the city’s interest and the public interest. We are sure all Jefferson City residents will join with us in asking ‘Why?’ ”

There are numerous other references with unsavory innuendoes if not direct charges of wrongdoing on the part of the six councilmen and there is no proof or even a claim that Dr. Skain was a party to or guilty of any of the matters charged in the “éditorial condemnation.” Mr. Weldon in testifying on this trial “exonerated” Dr. Skain “from being involved in any immorality” but once it is a permissible inference that the editorial in fact referred to and included him it could of course be found that the scurrilous, defamatory charges were made with knowledge of their falsity or if not in the language of the Sullivan opinion, in defining actual malice, “with reckless disregard of whether it was false or not.” The transcript need not be examined in detail, this is sufficient to illustrate that, as with identity, actual malice was a question for the jury to resolve and could not be declared as a matter of law.

Because of the prejudicial error in the instructions the judgment is reversed and the cause remanded.

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.


author: DONNELLY, Judge.

text:
    STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Elwood LONG et al., On Exceptions of George C. Ballew et al., Respondents.
    No. 52955.
    Supreme Court of Missouri, En Banc.
    Dec. 11, 1967.
    Rehearing Denied Jan. 8, 1968.

      Robert L. Hyder, Thomas E. Cheatham, Jefferson City, for appellant.
    Hulen & Hulen, Moberly, for respondents.
   DONNELLY, Judge.

In this condemnation proceeding, respondent George C. Ballew recovered damages in the amount of $12,000 in the Circuit Court of Randolph County. The State Highway Commission appealed to the Kansas City Court of Appeals, which transferred the case to this Court. We consider the case “the same as on original appeal.” Rule 84.05(h), V.A.M.R.; Mo.Const., Art. V, § 10 (1945), V.A.M.S.; Cornet & Zeibig, Inc. v. 430 Withers Realty Co., Mo.Sup., 415 S.W.2d 751[1],

Respondent Ballew owns a 160-acre farm in Howard County, 110 acres of which is bottom land. Supplementary State Highway Route C (124) extends east and west along the south boundary line of the farm. Hungry Mother Creek runs through the farm from north to south and under a bridge at the highway.

Prior to 1963, the bridge was 63 feet long and the grade of the highway was such that, when Hungry Mother Creek flooded, the surface water flowed over the highway and on in a southerly direction. In 1963, the State Highway Commission built a new bridge 140 feet long and raised the grade of the highway nine feet. Now, in times of flooding, more surface water can drain under the new bridge but no water can flow over the highway.

Witnesses for Ballew testified that after 1963 water backed up on his bottom land and damaged it because it could not drain off as fast as it had before the elevation of the grade of the highway. All of the evidence adduced in behalf of respondent Bal-lew on the issue of damages relates solely to the market value of Ballew’s bottom land before and after the elevation of the grade of the highway.

Ballew is entitled to compensation for the land actually taken. There was no evidence presented by Ballew on direct examination as to its nature, its extent, or its value. This evidence was presented by appellant. Apparently the easement actually taken is a strip of land eight feet wide, extending along the north edge of the old roadway, and consisting of .83 acre.

Ballew is entitled to damages, if any, sustained to the remainder of his 160-acre farm. Only a part of the farm was condemned. “The measure of damages in such case is the market value of the land actually taken, and the consequential damages, if any, to the remainder of the land caused by the taking.” City of St. Louis v. Vasquez, Mo.Sup., 341 S.W.2d 839, 846; Public Water Supply District No. 2 v. Alex Bascom Co., Mo.Sup., 370 S.W.2d 281, 288[5], The burden of proof is on Ballew to establish the causal connection. City of St. Louis v. Kisling, Mo.Sup., 318 S.W.2d 221, 225; State ex rel. State Highway Commission v. Baumhoff, 230 Mo.App. 1030, 93 S.W.2d 104, 109; City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149, 153. There is no expert testimony in the record conclusively showing that the taking of the .83 acre easement contributed to the flooding of-Ballew’s bottom land. However, Ballew’s Exhibit 1, the plans and specifications of the project prepared by appellant, shows the taking of Bal-lew’s land and its inclusion in the new right-of-way. These same plans provide for reconstruction of the highway and a raise in grade of the highway. The evidence is uncontradicted that Ballew’s bottom land was flooded and damaged as a result of the reconstruction of the highway. All of this evidence was admitted without objection and no evidence was offered by appellant to show there was no causal connection between the actual taking and the damage to the remainder of Ballew’s land. The only action taken by appellant was a motion for directed verdict at the close of respondent’s evidence. In these circumstances, the evidence adduced relating to damages to Ballew’s farm is sufficient to sustain the verdict.

The judgment is affirmed.

HOLMAN, C. J., and HENLEY, FINCH, SEILER and STORCKMAN, JJ., concur.

EAGER, J., dissents.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Joseph Stalin REYNOLDS, Appellant.
    No. 52196.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 8, 1968.

      Norman H. Anderson, Atty. Gen., Jefferson City, Austin B. Speers, Special Ass’t. Atty. Gen., Kansas City, for respondent.
    J. Whitfield Moody, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
   STOCKARD, Commissioner.

Appellant was found guilty by a jury of murder, first degree, and his punishment was assessed at life imprisonment. Sentence and judgment were rendered accordingly, and this appeal resulted. Although appellant was represented at trial by privately retained counsel of his choice, he was permitted to appeal as a poor person and is represented on this appeal by The Legal Aid and Defender Society of Greater Kansas City.

Appellant does not challenge the sufficiency of the evidence, but a brief statement of the facts will provide a helpful background. A jury reasonably could find from the evidence that on the evening of December 23, 1964, appellant and three companions, all of whom were armed, were riding in an automobile when it was suggested that they hold up a merchant by the name of Harry Wienshienk. Appellant and two companions left the automobile, and then appellant and one companion, Calvin Brown, approached Mr. Wienshienk who had left his stofe and was entering his automobile near the intersection of Twelfth and Tracy Streets in Kansas City, Missouri. One of them said, “This is a hold up, ” and Mr. Wienshienk “whirled” and grabbed appellant’s gun. In the struggle that followed the gun was discharged. Mr. Wienshienk was shot in the chest and died a few hours later. Appellant and Brown fled the scene, and later when appellant heard that Mr. Wienshienk had died, he attempted to dispose of his gun. The gun was subsequently obtained by the police, and ballistic tests indicated that it was the murder weapon. Three police officers testified to oral statements made to them by appellant wherein he admitted the attempted robbery and the shooting of Mr. Wienshienk.

Appellant’s first point is that the trial court “erred in denying his motion to require the State to disclose information which would materially aid him in preparing his defense. ”

Civil Rule 83.05(e), V.A.M.R., expressly made applicable to briefs filed in criminal cases by Criminal Rule 28.18, V.A.M.R., provides that points relied on shall briefly and concisely state what actions or rulings of the trial court are claimed to be erroneous and briefly and concisely state why it is contended the court was wrong in any ruling sought to be reviewed. This point does not comply with the rule. The “information” sought is not described or identified, and there is no statement as to why the court’s ruling is claimed to be in error. For the reason that it appears from argument that appellant contends that he was entitled to the “information” on some federal constitutional ground, we shall rule the contention though inadequately presented, State v. Beasley, Mo., 404 S.W.2d 689, 700, and shall set forth a rather detailed statement of the circumstances.

On December 13, the day on which the trial started, appellant filed a motion to require the prosecuting attorney “to produce forthwith for examination by defendant, [1] copies of all statements, if any, allegedly made by defendant pertaining to the indictment now pending against the defendant, [2] copies of all statements and/or investigation reports in the possession or knowledge of the State which are advantageous to the defense against the charges in the indictment, * * *. ” This motion was denied, but in the discussion concerning it the court commented that the prosecutor “has indicated that he has no written statement of the defendant,” and that “if there were one, I would require him to' produce it.”

We shall turn now to the assignment of error in the motion for new trial upon which the point in the brief necessarily is based. It is there asserted that the trial court “erred in denying defendant’s motion to require the State to disclose to defendant information which would materially aid the defendant in preparing his defense.” It is then stated that “several weeks prior to trial” (but, as previously noted the motion to produce was filed the day the trial started) appellant requested the prosecuting attorney “to provide the names of witnesses,” and that such request was based on the belief that the State possessed the names of those “who were present at the scene of the crime or shortly thereafter and to whom the victim made a statement.” It was further stated, apparently to establish that there were such witnesses, that the testimony of Officer Weddle revealed “the names of two witnésses whose names and addresses were included in his investigation report,” and, apparently as evidence of the need for the names before trial, that appellant did not have sufficient time before the conclusion of the trial “to locate the witnesses and produce them for trial.”

To summarize, and in an effort to determine and set forth precisely appellant’s contentions of error, it is asserted that the trial court erred in refusing to require the prosecution to produce forthwith, that is, before trial, “information” consisting of the “names of witnesses” who were “present at the scene of the crime or shortly thereafter and to whom the victim made a statement.” By reason of the cases cited by appellant in argument in support of his motion for new trial and in argument on this appeal, it is apparent that he contends that denial of his motion to produce constituted a denial of due process in violation of the Fourteenth Amendment to the federal Constitution.

In Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, cited by appellant, it was stated that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Appellant also cites United States ex rel. Meers v. Wilkins, 2 Cir., 326 F.2d 135; Powell v. Wiman, 5 Cir., 287 F.2d 275; and State v. Thompson, Mo., 396 S.W.2d 697. In an article entitled Suppression of Evidence Favorable to an Accused by Judge James M. Carter, 34 F.R.D. 87, it is stated that “defense counsel have seized upon the Brady case as a complete innovation and have made it the basis for motions prior to trial to inspect all evidence in the hands of the prosecution favorable to the accused on the issues of guilt or punishment.” However, as Judge Carter points out, the Brady v. State of Maryland case does not require the production of the evidence therein referred to before trial. None of the other cases cited and relied on by appellant rules that due process requires the prosecution to turn over to an accused prior to trial the “information” requested in this case. Appellant does not contend that he was entitled to the “information” before trial for any reason other than the rule announced in Brady v. State of Maryland, supra, and the discovery procedure in this State applicable to criminal cases does not require it. See State v. Aubuchon, Mo., 381 S.W.2d 807, and State v. Spica, Mo., 389 S.W.2d 35.

Near the end of the appellant’s evidence, counsel said this: “I would like to renew my motion made prior to the beginning of the testimony in this matter that I be allowed to see the police investigation report or any other data that may be a part of the prosecutor’s file that would aid the defense of my client.” The precise ruling on this request is not clear. There was considerable discussion between counsel and the court, and at one time the prosecuting attorney commented that appellant’s counsel was “referring to newspaper articles that were printed about a year ago,” and appellant’s counsel agreed that she was. The court also asked appellant’s counsel if she had subpoenaed “the records of the police department” and she replied that she had not. During the discussion appellant’s counsel was furnished an investigation report made by Officer James who had talked to Mr. Wienshienk at the hospital. Although this report contained hearsay statements it was read to the jury by appellant’s counsel without objection on the part of the prosecution.

In our determination whether the rule announced in Brady v. Maryland, supra, required that “information” should have been turned over to appellant in response to the oral request, we shall consider first the “information” set forth in the motion for new trial to which appellant claimed he was entitled to receive, which was the names of witnesses referred to in the testimony of Officer Weddle who “were present at the scene of the crime or shortly thereafter and to whom the victim made a statement.”

At the trial Officer Weddle testified that he went to Twelfth and Tracy Streets to investigate the reason for a request for an ambulance. When he arrived he found that Mr. Wienshienk had been shot. He talked to numerous persons whose names he did not know, and he also talked to a Christine Porter and a person whose last name he could not remember but whose name was in his report, and both of these persons stated to him that they had “heard the shots, and after the shots they saw Mr. Wienshienk lying there in the street.” There is no indication in the record nor does appellant claim that either of these persons- witnessed the shooting or that either person talked to Mr. Wienshienk. Officer Weddle was the first witness to testify in the trial, and when this testimony was given, apellant’s counsel made no request to see Officer Weddle’s report, and did not request subpoenas for the two persons referred to by him. Appellant has not demonstrated that either of the persons referred to in the motion for new trial was present at the scene, or that Mr. Wienshienk made a statement to either one, or that the prosecution suppressed any evidence favorable to appellant.

We shall next consider certain “information” set forth in appellant’s brief which he asserts should have been made available to him under the rule of Brady v. Maryland. After the trial was over and at the hearing on the motion for new trial, appellant’s counsel subpoenaed the entire police file relating to the Wienshienk homicide. No contention is made that the police file revealed any information concerning the two persons mentioned in the testimony of Officer Weddle that counsel for appellant did not already know. At the time of the hearing on the motion for new trial, in an effort to show that the police department file, not the prosecutor’s file, contained “information” which would have been advantageous to appellant in the preparation of his defense, appellant’s counsel offered in evidence an investigation report from the police file made by Officer Zimmerman in which he stated that a “confidential informant” had told him that while he, the informant, was in a cafe he had heard Mary Craddock, a girl friend of Monty Ray Denmon, say that “they, meaning Denmon and his friends, had committed this offense or had shot a man upon 12th Street,” and that “she indicated that Denmon was the one who actually pulled the trigger and she did not say who was with him.” There was no indication that the “informant” or the police talked to Mary Craddock. Appellant also showed that in the report of Officer Zimmerman it was stated that Beulah Johnson had said that she was sitting in a rocking chair “just about asleep” when she heard a shot. She then looked out of her window and saw Mr. Wienshienk standing by his automobile with two colored men standing next to him, and that Mr. Wienshienk fell and the two colored men ran away. Appellant also showed that the police file contained a report of a previous interview by Officer Ratteree with Beulah Johnson wherein she was reported to have said that after she heard the shot she saw Mr. Wienshienk lying on the ground and one man, unknown whether white or colored, running away.

Officer Zimmerman and Beulah Johnson were both indorsed on the indictment. As far as shown by the record no effort was made by appellant to interview either of these persons before trial. Officer Zimmerman testified for the State and he was asked on cross-examination whether he had conducted any investigation, and whether he had made a report. He stated that he had made an investigation, that one of the persons he talked to was Beulah Johnson, and that he had made a report of his investigation. No request was made for that report. In his brief to this court, in referring to the statement in the police report by Officer Zimmerman pertaining to what an informant had said he had heard Mary Craddock say, appellant admits that “We believe he [the prosecutor] did not know of it.”

There is nothing to indicate that this “evidence” or “information” was in any way suppressed. It was not in the hands of the prosecutor, and although we may assume that the police file was available to him, there is no duty on the prosecutor to search records in other offices or departments in an effort to prepare a defense for appellant. Also, the information cannot possibly be considered to be “favorable” to the appellant and “material either to guilt or to punishment” within the meaning of Brady v. Maryland. It was not exculpatory in nature. The “information” furnished by the informant as to what Mary Craddock said can hardly be called “evidence,” and the fact that Denmon was reported to have been with appellant at the time of the attempted robbery was known to appellant’s counsel, and he could have been interviewed.

We deem it inadvisable to attempt in this opinion to state precisely the duties placed on the prosecution by reason of Brady v. Maryland, but we are of the opinion that it does not require the prosecution to comb through material not in its possession in an effort to locate something which, when and if is followed up, might or might not prove to be helpful to the defense, and it does not require that the prosecuting attorney perform the investigation and preparation for trial which normally should be performed by defense counsel. We find no violation of the rule announced in Brady v. State of Maryland.

In appellant’s reply brief mention is made for the first time to Criminal Rule 25.195, V.A.M.R., in which it is provided that “Upon motion of a defendant the court may order the attorney for the state to permit the defendant to inspect and copy or photograph any relevant (1) written or recorded statements or confessions made by the defendant, or copies thereof, which are known by the attorney for the state to be in its possession, custody or control, * * There is no contention in the motion for new trial that the court erred in failing to require the production of a statement of appellant, and there is no such contention in appellant’s brief, other than the reply brief. However, for the reason we ruled the last contention, we shall rule this contention.

It is admitted that there was no statement written by defendant or other written statement signed by him. The trial court advised appellant’s counsel before the trial started that if there were such a statement it would require its production. During the trial the court held a hearing out of the presence of the jury to determine whether certain oral statements of the appellant made to police officers were voluntary. At that hearing Officer Zimmerman testified concerning his interview with appellant, and that after being advised of his right not to make a statement and that if he did such statement might be used against him, appellant orally confessed to the crime charged against him. The court then asked Officer Zimmerman whether he made “notes of this,” and he replied, “as I was going along I made periodical notes,” and that he “transferred them to a hand, typewritten report immediately after the interview.” Appellant’s counsel then asked this: “Did you prepare a written statement at that time?” The answer was “No Ma’am, because he had already told me that he did not wish to make a written statement.” As far as shown by the record this is the first time the court or the prosecuting attorney knew that these “notes” had been made and that they had been “transferred” to a typewritten report. Appellant’s counsel, then as fully advised as the court or the prosecuting attorney, made no request of any kind to be permitted to see either the notes or the report. Later, Officer Zimmerman testified before the jury. On cross-examination he was asked if he made “any notes regarding this questioning,” and he replied that he did, but that he “destroyed the notes after [he] had transcribed the report.” Officer Zimmerman did not use the report to refresh his recollection while testifying, and there was no request that the report be made available to appellant or that he be permitted to inspect it.

Appellant argues that “the record taken as a whole indicates that the prosecuting attorney had in his possession a police report containing defendant’s oral confession.” We do not rule whether this typewritten report in which Officer Zimmerman had “transcribed” the “notes” constituted a written or recorded statement or confession within the meaning of Criminal Rule 25.195. Assuming that the prosecuting attorney knew of the report, it did not consist of a written or recorded statement or confession of the accused as that term is generally understood. But, more important, after the existence of the report first became known to the trial court and to appellant’s counsel, no request whatever was made for its production. Under these circumstances appellant cannot now complain on ' appeal that the trial court erred in not requiring the report to be made available tó him. We note further, that after trial appellant obtained by subpoena the entire police file on the investigation of the Wienshienk homicide, which presumably contained this report by Officer Zimmerman. Appellant, by argument or otherwise, points to nothing in that report which resulted in prejudice to him by not seeing the reptírt earlier. We find no violation of Criminal Rule 25.195.

In appellant’s second point he asserts that the trial court erred in denying him a continuance “so that he might have sufficient time to locate and produce the witnesses mentioned” in his first point. This would necessarily refer to the two persons mentioned by Officer Weddle in his testimony, but we find no request for a continuance in order to locate them. Also, as previously mentioned, no subpoena was requested for them. If by any reason it could be construed that the “witnesses” referred to Mary Craddock and Beulah Johnson, no specific request was made, Beulah Johnson was indorsed on the indictment, and there is no showing that Mary Craddock had knowledge of anything to which she could testify. In addition to the point being inadequate, it has no merit.

Appellant next asserts in three separate points that the court erred in refusing his motions for mistrial pertaining to the qualification and use of an alternate juror. An alternate juror was selected, and during the trial one of the members of the regular jury was excused, and the alternate juror participated in the determination of the verdict. In his brief to this court appellant makes this statement: “The record discloses that the trial court strictly followed the provisions” of Section 494.065, V.A.M.S., which authorizes the selection of an alternate juror. In appellant’s brief it is argued that the alternate juror “was a member of the original panel and was excused; that when he returned to the jury room he had an opportunity to discuss the case with other jurymen who could have prejudiced him against the defendant, and that he might have carried this prejudice with him into the jury box.” Appellant’s counsel questioned the alternate juror on voir dire. There is no contention that any unauthorized discussion took place, and the record discloses no basis for finding or even assuming that the alternate juror was prejudiced against appellant. Appellant concludes in his brief that “no decision” has been found “holding that such a possibility would disqualify” the person selected as an alternate juror. Appellant has not met his burden to demonstrate prejudicial error.

Appellant’s last point is that the trial court erred “in admitting into evidence his alleged oral admission, that said alleged admission was not voluntary and was induced by intimidation of the police officer,” and also that error resulted from “the denial of the assistance of counsel in violation of the Sixth Amendment of the Constitution of the United States as made obligatory upon the states by the Fourteenth Amendment.”

The trial court conducted a hearing out of the presence of the jury on the issue of the voluntariness of the oral statements made by appellant to police officers. Officer Johnson testified that before questioning appellant he told him that “being questioned” was a “voluntary thing,” and that he did not have to answer any questions. He also testified that he told appellant that he had a “right to counsel,” and that he could telephone anyone. He added that appellant did not ask to see an attorney, and that “had he asked, then the interview would have been terminated.” Officer Zimmerman testified that appellant was “advised of his constitutional rights,” and was told that he did not have to make a statement. Appellant was also told, according to Officer Zimmerman, that he had a right to counsel, could contact counsel, and that anything he might say could be used against him in the event of a trial. Appellant did want to make a telephone call, and was permitted to do so, and according to Officer Zimmerman, appellant said that he did not wish to have his attorney present at that time. Appellant testified at this hearing. He stated that “they [referring to the police officers] advised me of my rights,” and he further testified that he was told that he did not have to make a statement, and that either an oral or written statement could be used against him. He also testified that he told them he wanted to call his lawyer and his mother, and “they allowed me to make calls.” He talked to his father by telephone and apparently did not reach a lawyer. He did not testify that he told the police officers he wanted his lawyer present; neither did he testify that that was his wish. He admitted in his testimony that he was shown a gun by the police officers which they had obtained, and that he identified it and told them it was his. He testified that he told the police officers that he knew nothing about the homicide, but that he had known Mr. Wien-shienk. Appellant did not contend in his testimony that he had been coerced in any way. The only difference between his testimony and that of the police officers was as to what appellant was supposed to have said to the officers in answer to their questions.

The trial court held, as a result of the hearing out of the presence of the jury, that the oral statements of appellant were voluntarily made. The police officers were then permitted to testify before the jury, and after stating that appellant had been advised of his rights as above set out, they related to the jury what appellant had said to them concerning his participation in the attempted robbery and homicide of Officer Wienshienk. Appellant elected not to testify before the jury. The record shows compliance with the rule announced in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. The conclusion of the trial court that the oral statements of appellant were voluntarily made was not only authorized, but under the testimony was practically compelled.

There, is no merit to the contention that at the time of his questioning appellant was denied the right to confer with counsel or to have counsel present. Although the trial of this case occurred before the opinion was handed down in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, and the rules there announced are not retroactive, Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, the record shows no infringement of those rules. In addition, appellant admitted that he was permitted to and did make telephone calls, and in his testimony he made no contention that he objected to being questioned without counsel being present. The factual situation of this case does not bring it within the rule announced in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

We have examined those parts of the record required under Criminal Rule 28.02 and find no error.

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.

All of the Judges concur.


author: HENLEY, Presiding Judge. SEILER, Judge.

text:
    STATE of Missouri, Respondent, v. Johnny PRICE, Appellant.
    No. 52731.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 8, 1968.
    Norman H. Anderson, Atty. Gen., Jefferson City, Harry J. Mitchell, Special Asst. Atty. Gen., Palmyra, for respondent.
    J. Whitfield Moody, and J. Arnot Hill The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
   HENLEY, Presiding Judge.

Defendant was charged by information with burglary in the second degree and stealing. Trial before a jury began on September 20, 1966, and on the following day a verdict was returned finding him guilty and assessing his punishment at four years for burglary and two years for stealing. His motion for new trial was overruled and judgment was entered sentencing him in accordance with the verdict, the sentences to run consecutively. He appeals. He was represented by court-appointed counsel in the trial court and is represented here by the same counsel, who has filed a brief, reply brief and has presented oral argument.

A brief statement of the facts will suffice. On Sunday night, May IS, 1966, defendant and a companion were apprehended by officers of the Kansas City, Missouri Police Department inside Manfield Tavern owned and operated by Morris Riesman at 1031 East 12th Street in Kansas City. The tavern had been closed and securely locked by its owner the night of the 14th at about 1:30 A.M. Entry was gained by first breaking open a rear door into a hallway adjoining the tavern on the west; from the hallway, entrance was gained into a toilet of the tavern by cutting a large hole in the hallway wall; from the toilet, entrance was easily made into the tavern by merely opening a door. When first observed by the officers, defendant and his companion were leaving the tavern through the toilet, defendant holding a cigar box and his companion carrying a large pasteboard box. They were apprehended inside the toilet. The cigar box contained approximately $200 in currency and change, the property of Riesman; the larger box contained several bottles of whiskey and other articles, also the property of Riesman. Between observation by the officers and his apprehension, defendant attempted to escape. These facts alone would warrant the jury in finding defendant guilty of second degree burglary and stealing.

Defendant briefs one point: that the court erred in admitting in evidence his oral confession made at the police station, because the confession was secured in violation of his rights under the Fifth Amendment to the Constitution of the United States in that, before his confession, he was not advised of his right to counsel and, more particularly, that he was not advised that if he could not employ counsel the court would appoint counsel for him. He cites Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 and State v. Martin, Mo., 411 S.W.2d 215, and asserts that since this case was tried after June 13, 1966, it is governed by the additional safeguards defined by Miranda.

Detective Bert Cool of the Kansas City Police Department testified at a hearing before the court outside the presence of the jury and, later, in the presence of the jury, that he had interrogated defendant at the Admiral Boulevard Police Station shortly after defendant had been taken in custody the night of May 15, 1966; that he first advised defendant of his constitutional rights; that defendant then confessed the crime, giving the details as to how he and his companion had broken into the Tavern, what they stole, and how they were arrested. At the close of the hearing outside the presence of the jury, the court ruled that the confession was voluntary. As the jury was being returned to the courtroom, counsel for defendant made the following objection:

“MR. HILL: I assume that Mr. Schol-lars is now going to question the officer as to the statement that we have heard outside, and I want to place this objection. We object to the jury hearing the officer’s testimony as to anything that this defendant told him, for the reason that there has been no showing that there was an intelligent waiver on the part of this defendant of his constitutional rights, that he was not fully advised of his constitutional rights and for that reason we object to the statement going into evidence.”

The objection was overruled and Detective Cool proceeded with his testimony before the jury. This testimony, essentially the same as that given outside the presence of the jury, was as follows:

“Q (By Mr. Schollars) Detective Cool, when you arrived at the Number 1 Police Station on May 15th, 1966 at Admiral and Charlotte, did you have occasion to have conversations with the defendant, Johnny Price? A Yes, sir.”
⅜ ifc ⅝ ⅜ ⅜ ⅜
“Q Would you please tell me what the conversations were?
“A I found the defendant in a room, an interrogation room, I walked in. I introduced myself as Detective Bert Cool of the Kansas City, Missouri Police Department. I advised him that he did not have to talk to me under his constitutional rights, that he was entitled to consult friends or attorneys, and anything that he did say to me could be used against him in the event of a trial, and he waived this right — ”
* * * * * *
“Q * * * What was his response when you told him that he could have an attorney or he could call a friend too or remain silent? A He said he didn’t care to, and he just proceeded to tell me what he was doing, so I started to question him, why he was found where he was, and he decided to tell me.”
“Q * * * Now, Officer, after advising the defendant as you have testified to, what conversations took place, tell the jury, what did the defendant say?
“A I asked the defendant what he was doing at this location at 1031 East 12th and he stated to me that he and his friend, Brackson, had been broke and they decided to break into some place and he thought of this place that is known as Manfield Tavern, that he and his friend specifically went to Manfield Tavern to break into it and steal what they could get out of it for money. They went to the rear, they forced this rear door which leads to the — which is a stairway that leads to an old abandoned hotel, they went in, they tore the — took a screw driver and tore the board and the plaster wall off from the east wall of the stairway, which allowed them to enter into the women’s restroom of Manfield Tavern. They crawled through the restroom, they entered the tavern and they gathered up what they thought they could dispose of for cash, and as they were leaving they were met at this hole in the wall by two district men who arrested them at the scene on the inside of the Manfield Tavern.”

The Supreme Court of the United States, in summarizing its decision in Miranda, at page 1630 of 86 S.Ct., held that where an individual is taken into custody by the authorities and is subjected to questioning, each of these procedural safeguards are required and must be employed to protect his privilege against self-incrimination: (1) he must be warned prior to any questioning that he has the right to remain silent, (2) that anything he says can be used against him in a court of law, (3) that he has the right to the presence of an attorney, and (4) that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. “After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement.” 86 S.Ct. 1. c. 1630.

Detective Cool’s warnings obviously did not contain all the elements required by Miranda. As now contended by defendant, it did not contain the requirement that the police “ * * * make known to him * * * that if he cannot afford one, a lawyer will be provided for him prior to any interrogation.” 86 S.Ct. 1. c. 1628 [47, 48]. Therefore, defendant says, the court erred in permitting Detective Cool to relate the confession to the jury and its use against him should not have been permitted.

The state does not contend that defendant waived these rights and agreed to make a statement. However, it does contend that his one objection, “ * * * that he was not fully advised of his constitutional rights * * *was too general to call the attention of the court to the particular ground or reason why the confession should have been excluded; that the objection was insufficient to call attention to what constitutional right would be violated by admission of the confession in that the objection did not specify that the fourth requirement of Miranda had not been met before interrogation by Detective Cool. The state further contends that the failure to raise this Miranda objection at the trial precludes its being raised on appeal.

The objection is too broad in referring to general constitutional rights. The objection is so stated that it could refer to any right guaranteed an individual by the federal constitution. And there are many in addition to the fourth element of the Fifth Amendment as delineated by the Court in Miranda approximately three months before this case was tried.

Under Miranda police authorities are required to follow scrupulously each and all of four specific procedural safeguards or rights the Court delineates as Fifth Amendment rights of an individual in custody or otherwise deprived of his freedom. To insure the enforcement of these rights, the Court further said, 86 S.Ct. 1. c. 1630, “But unless and until such warnings * * * are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” Thus, if the state proves that the authorities afforded him three of these rights but fails to prove they afforded him the fourth, evidence obtained from him is inadmissible. Should an objection be held to be sufficient to preserve for review Fifth Amendment rights, as so delineated, where the objection fails to specify which of those rights have not been afforded the defendant? No. He is required to be as specific in stating the grounds or reasons for his objection as the authorities are required to be specific in advising him of each of his rights. Defendant’s objection does not even refer to which Article of or Amendment to the Constitution he has reference; hence, it refers to all rights guaranteed the individual, and to none specifically. In State v. Griffin, Mo., 339 S.W.2d 803, this court said, at 1. c. 805: “Unless the evidence is wholly inadmissible for any purpose, a general objection, one not stating reasons, preserves nothing for appellate review * * *and, in referring to the requirements for preserving constitutional issues for review, said, at 1. c. 806: “ ‘The sections of the Constitution claimed to have been violated must be specified * * * and the facts which constitute such violation must be narrated.’ ”

In State v. Meiers, Mo., 412 S.W.2d 478, 481, the court said: “Our rule is that constitutional questions must be raised in the trial court at the earliest opportunity consistent with orderly procedure; they may not be raised for the first-time in the appellate court. The defendant in a criminal case, if he proposes to raise a question pertaining to the violation of such right, must object to the introduction of his confession or admission, clearly and specifically stating his constitutional grounds for the objection; otherwise, the introduction of his confession or admission will not be sufficient basis for an assignment of error in his motion for new trial. His motion for new trial must present and direct the trial court’s attention to his trial objections by clearly stating with particularity his constitutional grounds. In other words, his constitutional grounds for objection must be kept alive and preserved throughout the case. State v. Smith, Mo., 310 S.W.2d 845, 850-851 [6-7]; State v. Johnstone, Mo., 335 S.W.2d 199, 207 [18-19]; Stembridge v. State of Georgia, 343 U.S. 541, 72 S.Ct. 834, 96 L.Ed. 1130; Michel v. State of Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83.” (Emphasis added.) See also: State v. Turnbough, Mo., 388 S.W.2d 781, 787 [9]; People v. Cabrellis, Cal.App., 59 Cal.Rptr. 795, 798 [1]; United States v. Armetta, (Second Circuit), 378 F. 2d 658, 661 [4]; Gaudio v. State of Maryland, 1 Md.App. 455, 230 A.2d 700, 704-705 [2-6].

By failing to make proper objection to the admission of his confession, defendant failed to preserve for review the only point raised in his brief.

Our examination of other matters we review under Rule 28.02, V.A.M.R. discloses no error.

The judgment is affirmed.

STORCKMAN, J., concurs.

SEILER, J., dissents in separate dissenting opinion filed.

Dissenting Opinion

SEILER, Judge.

I respectfully dissent, because it seems to me that the objection of defendant’s counsel, in the circumstances under which it was made, was sufficiently definite when he said, “ * * * for the reason that there has been no showing that there was an intelligent waiver on the part of the defendant of his constitutional rights * * * ” (Emphasis supplied).

All concerned understood this was in reference to the testimony which the detective was about to give to the jury as to defendant’s self-incrimination. The Miranda opinion at 384 U.S. 476, 86 S.Ct. 1629 states, “The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant”, and again at 384 U.S. 479, 86 S.Ct. 1630,. “But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” This opinion had been widely publicized and was in the advance sheets well in advance of the trial of the present case.

It seems to me it was clear defendant was objecting there was no waiver shown of his right against self-incrimination, as in fact there was not. The point was also set forth in the motion for new trial and carried forward in the brief.

Also, our rule 27.26(b) (3) on post-conviction remedy provides that “ * * * trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal.” Defendant is claiming violation of a constitutional right and it appears to me that we will save considerable time, expense and effort for all involved if we handle the question on its merits now, State v. Beasley (Mo.Sup.) 404 S.W.2d 689, 690; State v. Reynolds, Mo., 422 S.W.2d 278.

For these reasons I would reverse and remand.