text:
    William J. BEGGS, (Plaintiff) Respondent, v. UNIVERSAL C. I. T. CREDIT CORPORATION, a Corporation, (Defendant) Appellant.
    No. 51144.
    Supreme Court of Missouri, En Banc.
    March 8, 1965.

      Lawrence F. Gepford, Donald L. Mason, John J. Hager, Kansas City (Mason, Gant, Gepford & Moran, Kansas City, of counsel), for respondent.
    John W. Schwartz, Preston H. Longino, Kansas City, for appellant
   HOLMAN, Judge.

In this action plaintiff alleged that defendant unlawfully took possession of his truck (tractor) and towed it in a manner that caused it to be badly damaged. He sought actual damages in the sum of $2,900 and $15,000 for punitive damages. The trial resulted in a verdict for plaintiff in the amount of $2,500 actual and $13,000 punitive damages. As a condition for overruling the motion for new trial the court required a remittitur of $1,612.46 of the actual and $2,000 of the punitive damages. Plaintiff filed the remittitur and a final judgment was entered for plaintiff in the sum of $887.54 as actual damages and $11,000 as punitive damages, an aggregate of $11,887.54. Defendant appealed to the Kansas City Court of Appeals and that court adopted an opinion affirming the judgment. Upon defendant’s application, we ordered the case transferred to this court and it will be determined here “the same as on original appeal.” Civil Rule 84.05(h), V.A.M.R.; Mo.Const. Art. V, § 10 (1945), V.A.M.S.

On the dates hereinafter mentioned plaintiff was engaged in the trucking business. He had no certificates for public routes but engaged in private hauling primarily of heavy construction materials. He owned two Diamond T trucks, both of which were painted red. The 1958 model was a gasoline truck with a single axle, while the other was a 1959 diesel with double axle and vertical exhaust. The ’58 truck cost about $8,000 and plaintiff obtained the purchase price by mortgaging it to his home bank. He purchased the ’59 truck from the Hastings Motor Company of Hastings, Nebraska, for about $20,000, and financed it by executing a chattel mortgage for $19,837 to be paid at the rate of $550 per month. The motor company sold that mortgage to defendant Universal C.I.T. Credit Corporation.

On April 14, 1961, plaintiff was delinquent three payments on his ’59 diesel, and a fourth payment became due that day. He had frequently been delinquent in his payments and on several occasions had given checks which did not clear the hank because of insufficient funds. For some time defendant had had difficulty in locating plaintiff and the truck on which it held a mortgage. Defendant had transferred the account to its Kansas City office and an employee of that office, Ray Price, had been instructed to collect the delinquent payments, or take possession of the truck. Late in the afternoon on the date above mentioned Price located plaintiff at the lot of Blue Valley Transfer Company. The ’58 truck had just been driven onto the lot by plaintiff’s driver, Lyle Marlay. Marlay testified that he parked the truck, locked the cab, and left the transmission in gear. Price told plaintiff he would have to pay three payments at that time or he would take possession of the truck. Plaintiff said he could not get the money until the following morning, but Price told him he would take possession of the truck and, if the payments were made the next day, the truck would be returned to plaintiff. Plaintiff testified that he told Price that defendant had no lien on the truck parked on the Blue Valley lot. Price denied that in his testimony and Marlay testified that he didn’t hear any such statement. Plaintiff and Marlay then left the premises, and Price called a wrecker and had the ’58 truck (which he obviously thought was the ’59 truck upon which the defendant had a lien) towed away.

Three or four days later plaintiff found the truck on a filling station lot on South Main Street in Kansas City. He was of the opinion that the truck had been considerably damaged by having been towed while in gear, although Price testified that the cab was not locked and that the operator of the tow truck took the truck out of gear before starting the towing operation. Plaintiff had the truck towed to an International Harvester garage where repairs were made during the following week or ten days. Plaintiff later paid $1,090 for the repair work but conceded that at least $250 of that amount was for repairs that had no connection with the damage allegedly caused by defendant. Plaintiff also testified that he lost from $500 to $600 in profits from loss of use of the truck during the time it was being repaired.

In its motion for new trial defendant alleged that it discovered, after the trial, that four jurors had failed to answer appropriate questions or had made false answers on voir dire examination, and had wilfully concealed certain facts concerning litigation in which they had been involved and financial difficulties they had had with other finance companies. The four jurors, Emory J. Holder, Nicholas Hernandez, Carl A. Bendert, and Donald R. Fitzgerald all testified at the hearing of the motion for new trial.

Near the beginning of the voir dire examination Mr. Gepford, plaintiff’s counsel, asked, “Is there anybody on the panel who is now a plaintiff or defendant in a lawsuit? In other words, anybody who is suing somebody or who has been sued by somebody?” Mr. Holder then stated that he was a plaintiff in an automobile damage suit that had been pending about four years. Then the following question was asked: “Anybody else who is now a plaintiff or defendant in a lawsuit? Is there anybody who has been in the past a plaintiff or defendant?” In answer to that question a number of the jurors gave information concerning past lawsuits that they had been involved in, but nothing was said by any of the four jurors heretofore named. The panel was then examined by Mr. Schwartz, one of defendant’s counsel. He asked this question: “Have any of you had any lawsuits or damage suits or claims of any kind against anybody, either as individuals or corporations, other than the ones who have told us here, told Mr. Gepford when he asked the question? To save time we will not go over it again. If there is any additional, we would like to know it at this time.” None of the four jurors here involved made any response to that question.

Thereafter, each juror on the panel was examined individually by the attorneys. Each member of the panel was asked by Mr. Schwartz -a question substantially in this form: “Have you ever had any trouble with any finance company?” We will hereafter give the questions asked the above-named jurors and in the same paragraph state their testimony at the time the motion for new trial was heard.

Carl A. Bendert: This prospective juror testified on voir dire as follows: “Mr. Schwartz: Have you ever had any trouble with any finance company in any way, shape or form? Mr. Bendert: No.” At the after-trial hearing he testified as follows: “Mr. Schwartz asked you, ‘Have you ever had any trouble with any finance company in any way, shape or form?’ You answered ‘No.’ Now, in May 1962, didn’t G.M.A.C. reposses an automobile from you ? A. Yes, they did, but it wasn’t actually any trouble. Q. Just answer my question. Was that because of back payments? A. Yes, sir. Q. How many payments were you behind? A. Three payments, I think. Q. You didn’t tell us that when Mr. Schwartz asked that question, did you? A. No, because I didn’t think it had any bearing on anything else except my personal business. Q. It was in your mind when you answered that question? A. Well, yes, I knew it. * * * Q. Now, did you ever have any problems with the Hickman Mills Bank taking back stuff of yours? A. Yes, I did. Q. Was that a TV, camera, automobile? A. Yes, sir. Q. And when did that happen, in July of 1961 ? A. Somewhere along there, yes. Q. Did you recall that when that question was asked you by Mr. Schwartz? Did you know that when he asked you that question? A. As I say again, I didn’t think that had any bearing. Q. But you did know it, you remembered it when the question was asked you? A. Yes, I knew it.” ' .

E. J. Holder: This juror testified on voir dire as follows: “Mr. Schwartz: No trouble with any finance company? Mr. Holder: No.” At the later hearing he gave the following testimony: “You remember being asked about having problems with finance companies? A. Yes. Q. Your answer was ‘No.’? A. That is true. Q. Isn’t it true that the Associated Discount Corporation filed a suit against you for repossession of an automobile in Judge Blackburn’s court? A. That is true. Q. When was that? A. I don’t recall exactly when it was. Q. Could it have been on the 25th of July, or thereabouts, 1960? A. Could have been, yes. Q. They got a judgment against you for $1,274.27 and repossession of the automobile, is that right? A. That is probably correct.” Mr. Holder also testified that he had owed some $1,600 to Bankers Investment Company and it had repossessed a car from him; that in March 1962 he filed a petition in bankruptcy because he had been unable to pay the finance companies heretofore mentioned and also could not pay two lumber companies, and City Block & Products Company which had filed suits against him and obtained judgments. When asked to explain why he had not disclosed these repossessions on voir dire examination he replied, “I didn’t consider it trouble. It was trouble for me, because I was loser, but not as to feeling ill against the finance company — because they were merely fulfilling their end of the contract and I wasn’t.” Later in the examination he stated that he “didn’t think about it at all. It was past history as far as I was concerned.”

Nicholas Hernandez: This juror likewise responded in the negative when asked if he had had any trouble with any finance company. In the later hearing it was shown that he had filed a wage earner’s petition in bankruptcy in 1957 and was discharged in 1961. It was shown that three of his creditors were Seaboard Finance Company, Family Finance Corporation, and Employees’ Credit Union of Swift & Company. When asked to explain why he had not disclosed this information on voir dire he stated, “Well, I remembered the wage earner matter. I didn’t figure that would be —you say I was having trouble with the finance company, I never had any trouble with them. I was just in way over my head and I had to do something to protect myself and my family.”

Donald R. Fitzgerald: Mr. Fitzgerald failed to make any answer when the entire panel was asked if any of them had ever been a party to a lawsuit. At the after-trial hearing he testified that he had filed a suit about two years before the instant trial seeking $50,000 damages for personal injuries, and that the suit was settled a few months thereafter for approximately $4,500. Mr. Fitzgerald conceded that he remembered this lawsuit when the questions were asked but he didn’t disclose that fact because he didn’t feel it had anything to do with this case. He later stated that he thought the question meant the same type of lawsuit that was then on trial.

Each of the jurors also testified, usually in response to a question by the court, that he did not knowingly or wilfully conceal or refuse to reveal any information. At the conclusion of the hearing the trial court found “that there was no intentional concealment of information, or wilful failure to disclose information, by jurors Hernandez, Fitzgerald, Holder and Bendert.”

As indicated, it is the contention of defendant that* the trial court erred in overruling its motion for a new trial, after it was disclosed that four of the jurors selected to try the case had wilfully failed to disclose prior lawsuits and difficulties with finance companies, although they were questioned generally and specifically on voir dire concerning such matters. Plaintiff’s reply to that contention is that the trial court’s ruling on the motion should not be disturbed because that court did not abuse its discretion in finding that the four jurors did not wilfully or intentionally conceal inf formation in responding to the voir dire examination.

The rules to be considered in our determination of the question presented are well settled. “The constitutional right of every citizen to a trial by jury to be meaningful contemplates a fair and impartial jury. The jury should consist of twelve impartial, qualified jurors. Even though three-fourths of them can decide a civil case, parties are entitled to have that decision, whether for them or against them, based on the honest deliberations of twelve qualified jurors. Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695, 127 A.L.R. 711. It is the duty of a juror on voir dire examination to fully, fairly and truthfully answer all questions' directed to him so his qualifications may be determined and so that challenges may be intelligently exercised. It makes no difference whether the unanswered or untruthfully answered question was one asked to the panel generally or to the particular- juror individually. So long as he hears the question and understands that it calls for an answer by him as a member of the panel, even though it may be directed to the panel generally he is not relieved of his duty to answer.” Brady v. Black and White Cab Co., Mo.App., 357 S.W.2d 720, 725. A prospective juror may not be the judge of his own qualifications. “[A] juror’s intentional concealment of a material fact may require the granting of a new trial. Woodworth v. Kansas City Public Service Co., Mo., 274 S.W.2d 264. For bias and prejudice on the part of a juror may be inferred from his intentional concealment of such information. Girratono v. Kansas City Public Service Co., Mo., 272 S.W.2d 278. * * * In the final analysis, therefore, the question of what result should follow the failure of a juror to correctly answer a question touching his qualifications depends upon whether or not he was guilty of an intentional concealment. Primarily, the determination of that question must be left to the sound discretion of the trial court. Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795. Nevertheless, the exercise of such a discretion is subject to judicial review, and if an appellate court concludes from the record that an abuse of discretion unmistakably appears, it is its duty to reverse the ruling. Piehler v. Kansas City Public Service Co., supra, [357 Mo. 866, 211 S.W.2d 459]; Harrison v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 348.” Triplett v. St. Louis Public Service Co., Mo.App., 343 S. W.2d 670, 672, 673.

A review of the evidence in this case has convinced us that the jurors in question wilfully and intentionally withheld information which should have been disclosed on voir dire examination. That being true, the defendant sustained prejudice in that it did not have a trial before a fair and impartial jury of twelve persons and we therefore rule that the trial court abused its discretion in overruling the motion for new trial. See Maddox v. Vieth, Mo.App., 368 S.W.2d 725, Triplett v. St. Louis Public Service Co., supra, Brady v. Black and White Cab Co., supra, Woodworth v. Kansas City Public Service Co., Mo.Sup., 274 S.W.2d 264, Gibney v. St. Louis Transit Co., 204 Mo. 704, 103 S.W. 43, and Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459.

The prospective jurors were unequivocally asked if they had in the past been a plaintiff or defendant in a lawsuit. None of the four jurors heretofore named made any response. Mr. Fitzgerald later admitted that he had filed a suit two years before which had been settled for $4,500. He remembered this suit when the panel was examined but stated that he did not respond because (1) he did not feel it had anything to do with this case, and (2) he thought it meant the same type of lawsuit. Neither was a valid excuse. He had no right to make the decision that his case need not be disclosed because he thought it had nothing to do with the case on trial. There was also nothing in the question which would reasonably support his conclusion that it referred only to cases of the same type as the one on trial.

Mr. Holder, likewise, failed to disclose that five creditors had obtained judgments against him. He should have disclosed those judgments in response to the general question concerning lawsuits. He was also' asked if he had had any trouble with any finance company. Two of those judgments had been obtained by finance companies and those companies had repossessed cars from him. We think the word “trouble,” as used in that question, would reasonably be construed to include lawsuits and repossessions by finance companies. This venireman offered no reasonable excuse for his failure to disclose those matters.

Mr. Bendert had had a car repossessed by a finance company, and an automobile, T.V. and camera repossessed by a bank. It does not clearly appear whether or not suits were filed in order to obtain possession of those items. However, in any event, we think those repossessions constituted “trouble” which the juror had had with those lenders and that he should have disclosed them. He had them in mind and his only excuse for nondisclosure was that he thought those matters had no bearing “on anything else except my personal business.” The excuse was insufficient.

We need not discuss the alleged failure of Mr. Hernandez to disclose his “trouble” with finance companies, as the failure of the other three jurors to make disclosures,, as heretofore discussed, is ample to support the conclusions we have reached.

In support of his contention that the trial court did not err in overruling the motion for new trial plaintiff has cited the following cases: Begley v. Adaber Realty & Inv. Co., Mo.Sup., 358 S.W.2d 785, Harrison v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 348, Hampy v. Midwest Hanger Co., Mo.App., 355 S.W.2d 415, and Hornberger v. St. Louis Public Service Co., Mo.Sup., 353 S.W.2d 635. In each of those cases the court, under varying factual situations, held that the trial court did not abuse its discretion in failing to grant a new trial because of nondisclosure by a venireman. Those cases are all distinguishable from the case at bar upon the facts involved.

We also have the view that the fact that the jury returned a verdict for actual damages m an amount which was at least $1,000 more than the evidence could possibly justify tends to support our conclusion that the case was not tried before a fair and impartial jury.

For the reasons stated, the judgment is reversed and cause remanded for a new trial.

EAGER, C. J., and STORCKMAN, HYDE, HENLEY and FINCH, JJ., and .STONE, Special Judge, concur.

DALTON, J., not sitting.


source: Caselaw Access Project

author: PRITCHARD, Commissioner. PER CURIAM.

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Respondent, v. John M. PARKER et al., Floyd Keller and Mary Keller, Appellants.
    No. 50433.
    Supreme Court of Missouri, Division No. 2.
    Jan. 11, 1965.
    Motion for Rehearing or for Transfer to Court En Bane Denied March 8, 1965.
    Robert L. Hyder, Earl H. Schrader, Jr., Tom J. Helms, Kansas City, for respondent.

      Randolph & Randolph, by Lewis F. Randolph, Jr., O. R. Newcomer, St. Joseph, for appellants.
   PRITCHARD, Commissioner.

This is a highway condemnation action. One question presented, the answer to which will determine this appeal, is whether plaintiff condemnor was entitled to an instruction to the jury upon special benefits claimed to have accrued to defendants con-demnees (Floyd and Mary Keller) by reason of an increased “funnelling” of traffic by their place of business on the pre-exist-ing “Belt” road (old U. S. Highway 71 in the south part of St. Joseph, Missouri) from the newly constructed, limited access U. S. Highway No. 36.

The Commissioners appointed by the court awarded condemnees $5,800. Plaintiff excepted and trial was had to a jury which resulted in a verdict for plaintiff. Condemnees appeal from the judgment of no damages to them and that plaintiff recover of them the $5,800 deposited with the Clerk of the Court. The evidence of damages ranged from $500 to $20,000, and this court has appellate jurisdiction. State ex rel. Kansas City Power & Light Company v. Salmark Home Builders, Inc., Mo., 375 S.W.2d 92, 94 [1].

The evidence relating to the here questioned issue of special benefits to con-demnees’ property is as follows: U. S. Highway No. 36 in St. Joseph, Buchanan County, Missouri, was planned to extend from the Missouri River Bridge easterly to intersect with north-south Interstate Route 29 at the eastern part of St. Joseph. New U. S. Highway No. 36 was to be constructed of two pavements, each 24 feet wide and separated by a median to form a divided highway. The intersecting “Belt” road was to be widened four feet on either side from in front of condemnees’ property to the south for several hundred feet. An interchange,-with; connecting ramps,-was to be constructed so that traffic on the new highway could leave it and go either north or south on the “Belt” road. A portion of con-demnees’ parking area in front of their business property (the Peacock Pancake House) was condemned and a temporary easement was taken for the reconstruction of driveways, surface and the placing of culverts thereunder for drainage purposes. The area taken was 0.069 of an acre, and the temporary easement was 0.074 of an, acre. We are not now concerned with other physical descriptions of the property.

Instruction No. 4, which condemnees contend injected an issue of special benefits-which should not have been in the case, is as follows:

“The Court instructs the jury that if you find and believe from the evidence that the location and construction of U. S. Highway #36 immediately adjacent to the remainder of defendants’ land not taken by plaintiff, will increase the fair market value of such remaining land, solely because of the immediate proximity and accessibility of such remaining land to said Highway #36, then such increase in value, if any, solely due to such proximity or immediate accessibility, is a special benefit and should be considered by you as such, even though you may further find that such special benefit, if any, is also enjoyed by other lands similarly located immediately adjacent to said highway, including such land no portion of which is taken for state highway purposes, and that you should deduct such special benefits, if any, from the damages, if any, to which the defendants may be entitled for the taking by plaintiff of a portion of their land and the damages, if any, to the remainder of defendants’ land.
“If you find and believe from the evidence that the .value -of such special benefits, if any, is equal to or exceeds the damages, if any,-to which-defendants may be entitled, if any, for the taking of a portion of their land, then your verdict shall be for the plaintiff.”

Plaintiff’s witness, Alan Bullock, testified concerning special benefits as follows:

“Q Now in your opinion, will there be any special benefits accrue to Mr. Keller’s property by virtue of the construction of Highway 36 interchange with the ramps?
“A I think it would be tremendous.
“Q Will you please explain to the jury what those advantages will be.
“A Well, that is the first piece of property there that has unlimited access for the traffic that is coming off the interchange there. With signs to be up, it will funnel traffic right there.”

It is the plaintiff’s contention that the remaining land of condemnees enjoys a special benefit solely because of its immediate proximity and accessibility to U. S. Highway 36. We agree with condemnees’ contention, above stated.

Photograph Exhibit “L”, looking north from the south edge of condemnees’ property, shows that there are unrestricted business sites on up the hill along the “Belt” road. Another photograph, Exhibit “K”, looking south from the north edge of condemnees’ property, reveals that south of U. S. Highway No. 36 are unrestricted highway frontages along the “Belt.” The fact that more traffic may be “funnelled” from the new limited access highway'onto the “Belt” and past condemnees’- property is not a special benefit accruing directly and proximately thereto by reason of the construction of the road. The increased flow of traffic would benefit the area generally and not specifically condemnees’ property. See State ex rel. State Highway Commission v. Jones, 321 Mo. 1154, 15 S.W.2d 338, 340 [1,2], as quoted in the recent case of State ex rel. State Highway Commission v. Ballwin Plaza Corporation, Mo., 382 S.W.2d 633, 636. See also the concurring opinion in Ballwin, loc. cit. 382 S.W.2d 639, where State ex rel. State Highway Commission v. Vorhof-Duenke Co., Mo.Sup., 366 S.W.2d 329, 339, Banc, is quoted: “ ‘This court has held that increased facilities for the travel and transportation of the general public are not such benefits as may be deducted from the compensation and damages; ’ ” and quoting State ex rel. State Highway Commission v. Turk, Mo.Sup., 366 S.W.2d 420, 422, “ ‘Upon the more general subject, we have said that “traffic, great or small, is merely an incident of streets and highways and cannot be considered either as an element of damages or of benefits.” ’ (Citing cases) Therefore, it is improper and incorrect to include the movement of traffic on a highway (greater or less, faster or slower, smoother or more congested) as an element of either special benefits or damages.”

The giving of Instruction No. 4 was error for the reasons stated in the foregoing cases. Other claimed errors will probably not recur on new trial.

The judgment is reversed, and-this case is remanded for new trial.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

STORCKMAN, P. J., and EAGER, J., concur.

FINCH, J., not participating because not a member of the court when .cause was submitted.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. William DONNELL, Appellant.
    No. 50685.
    Supreme Court of Missouri, Division No. 2.
    Feb. 8, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied March 8, 1965.

      Thomas F. Eagleton, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent.
    Bruce Nangle, St. Louis, for appellant.
   EAGER, Judge.

The present appeal is one from an order denying a motion to vacate a judgment of conviction for first degree robbery, and a sentence of 99 years under the Second Offender Act. Section 556.280, RSMo 1959, Laws 1959, S.B. No. 117, V.A.M.S. The opinion affirming that judgment upon defendant’s appeal appears at 351 S.W.2d 775. The present motion was denied on February 28, 1964, without the hearing of evidence. This máy be done under Criminal Rule 27.26, V.A.M.R. if the motion and the files and records in the case show that the defendant is entitled to no relief. A motion for a rehearing, with an “addendum” and a supplemental motion filed later, were also denied; the appeal is here by virtue of a special order from this Court. It is prosecuted in forma pauperis and a brief has been filed here by appointed counsel.

In this pro se motion to vacate defendant recites many irrelevant facets of his prior difficulties and proceedings upon which we shall not elaborate. These include incarcerations and paroles in Illinois, a trial and acquittal on another charge in St. Louis, and federal habeas corpus proceedings. On January 26, 1960, defendant was indicted in the City of St. Louis for a robbery committed on May 22, 1959; he was confined in Illinois at the time of the indictment, but he alleges that upon his release on parole in February 1960, he signed a waiver for return to Missouri on the robbery charges. He further states: that after his return to St. Louis he was detained for more than twenty hours without counsel, frequently interrogated, and that he was arraigned without counsel; that he was later tried and convicted in April 1960, but that he was granted a new trial (at which the present conviction resulted, on or about August 8, 1960). Since defendant is represented here by appointed counsel, we shall consider especially the Points and Authorities raised in the brief. Rule 28.02.

The first point in defendant’s brief is as follows: “Defendant was denied an opportunity to prove that the actions of the Police Department and the State were not consistent with his Constitutional rights during the entire time he was extradited to Illinois in October 1959 or when he was returned from Illinois in January 1960. Further, that he was denied assistance of counsel during every step of said proceedings.” We see no point in considering any alleged infringement of defendant’s rights occurring before he was returned to Missouri on the present robbery indictment. It is the conviction on that charge which he is now attacking. We shall not consider here the Illinois proceedings or the alleged lack of counsel upon extradition; defendant was delivered to Missouri authorities for return to this state, and we do not look, collaterally, at those proceedings. We have no jurisdiction over the Illinois authorities and, moreover, defendant’s mere return to Missouri was not a conviction; we look at the validity of the proceedings after he was returned.

Defendant states: that he was held from March 2 to March 9 by the St. Louis Police and placed in a lineup and interrogated on each day; he does not claim that he made any confession, oral or written, nor is any shown to have been used at his trial (see 351 S.W.2d 775); that on March 7 he was taken before Judge Nangle, who inquired if he had counsel; that he did not, but his case was set “for March 28 or 30, 1960”; that he wrote Judge Nangle a letter but received no reply; that on March 28 or 30, he was again summoned to Court and asked how he pleaded to which he replied that “I Plead The Right To Appear Before The Grand Jury.” We have obtained on the Court’s own motion certified copies of the minutes of the proceedings prior to the last and final trial. These show the following: “Monday, March 7, 1960 — Arraignment continued to 3/16/60. Wednesday, March 16, 1960 — Sidney Ruben appointed by Court as Attorney for Defendant Pleads Not Guilty; Trial Set March 28, 1960. Monday, March 21, 1960— Erving Cooper appointed by Court as Attorney for Defendant. Sidney Ruben withdraws as attorney for defendant Erving Cooper withdrawn as attorney for defendant Jerome Kalishman appointed by Court as attorney for defendant. Wednesday, March 30, 1960 — Continued to next term of Court for want of time to try— April 4, 1960. Monday, April 4, 1960— Continued for State — April 11, 1960.” Thereafter the cause was tried on April 11 and 12, 1960, a conviction was had, and a new trial granted on May 16, 1960. On that day new counsel was appointed for him, being more than fifty days before his second and final trial. It is thus obvious that defendant was not arraigned without counsel, nor was he without counsel at any time thereafter. The record does not show, nor does defendant state, why two attorneys found it necessary to withdraw before trial.

In State v. Statler, Mo., 383 S.W.2d 534, at 536-537, we said: “The sole question in this matter is whether defendant has stated (by affidavit or otherwise) any facts which raise a bona fide issue as to the constitutional validity of his trial. If ‘the files and records of the case show to the satisfaction of the court that the prisoner is entitled to no relief,’ the Court may deny the motion without an evidentiary hearing. Rule 27.-26. The deluge of such motions now being filed, many of which áre wholly without merit, attests to the wisdom of the quoted provision.”

The first point in defendant’s brief is that he was denied the opportunity to prove that his constitutional rights were violated by the Police and the State during the time when he “was extradited to Illinois in October 1959 or when he was returned from Illinois in January 1960,” and that he was denied assistance of counsel “during every step of such proceedings.” Our consideration begins with his return to Missouri after the present indictment. We have held that a mere detention without warrant beyond the twenty-hour period of our Rule 21.14 does not, per se, invalidate a confession nor constitute a ground for collateral attack. State v. Williams, Mo., 369 S.W.2d 408; State v. King, Mo., 380 S.W.2d 370; State v. Bryant, Mo., 375 S.W.2d 122. We likewise hold that a mere detention without warrant beyond twenty hours, where no confession is claimed, does not, per se, invalidate defendant’s subsequent trial and conviction. But we look further at the present facts. The purpose of our Rule 21.14, “Arrest Without Warrant — 20 Hour Limit — Bail,” is to prevent excessive detention without a charge being made; when one has been indicted, he is thereby placed under the most formal of charges and, pursuant to Rule 24.19, a warrant is issued. A detention for more than twenty hours here could not conceivably be illegal. This defendant could only be released on bail.

No facts are alleged here which would indicate that defendant’s detention up to March 16, 1960, without counsel, caused his final trial (or either of them) to be constitutionally unfair. In Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed. 2d 1265, a confession was obtained during lengthy and perhaps misleading interrogations conducted despite repeated requests of the defendant that he be permitted to consult his counsel, already employed. In Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, the situation was much the same; there the defendant had on two or three occasions been denied the right to consult with his attorney, already employed, during the period when a confession was being obtained from him under lengthy (and supposedly misleading) questioning, and without advice concerning his right to remain silent In that case there were, vigorous dissents concurred in by four. Justices. Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, also cited, concerned the right to counsel on appeal. It will be mentioned later. In Crooker v. State of California. 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, it was held that mere interrogations without counsel while in custody, resulting in a confession, did not constitute a violation of defendant’s constitutional rights or render the confession involuntary, even though counsel was requested. The Court further held that a deprivation of counsel in pretrial proceedings did violate due process if the defendant, was prejudiced to such extent that his subsequent trial could not be fundamentally fair. There were also dissents in that case. There the Court said in part: “Petitioner, however, contends that a different rule should determine whether there has been a violation of right to counsel. He would have every state denial of a request to contact counsel be an infringement of the constitutional right without regard to the circumstances of the case. In the absence of any confession, plea or waiver — or other event prejudicial to the accused — such a doctrine would create a complete anomaly, since nothing would remain that could be corrected on new trial. Refusal by state authorities of the request to- contact counsel necessarily would then be an absolute bar to conviction. On the other hand, where an event has occurred while the accused was without his counsel which fairly promises to adversely affect his chances, the doctrine suggested by petitioner would have a lesser but still devastating effect on enforcement of criminal law, for it would effectively preclude police questioning— fair as well as unfair — until the accused was afforded opportunity to call his attorney. Due process, a concept ‘less rigid arid more fluid than those envisaged in other specific and particular provisions of the Bill of Rights,’ Betts v. Brady, 1942, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595, demands no "such -rule!”

We thus determine1 that upon this defendant’s allegations his detention, with;out counsel, for the period of time from his return to Missouri to the time of his arraignment did not constitute a deprivation of any of his constitutional rights. Inherent in this ruling is the consideration that no confession and no admissions are claimed to have been procured and that no other circumstances are shown which were or became prejudicial. The mere fact that he was first positively identified by a witness or witnesses during that period is of no legal consequence. It is not the purpose of such proceedings as these to revalue the evidence produced at defendant’s trial or to readjudi-cate his guilt. State v. Worley, Mo., 383 S.W.2d 529, 533, and cases there cited.

Another contention of defendant is that he was without counsel at his arraignment. The cases of Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed. 2d 114, White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (already discussed) are cited. These cases are clearly distinguishable, when considered in the light of the Missouri practice, State v. Gagallaritti, Mo., 377 S.W. 2d 298, but the complete answer to this contention is that counsel was appointed for defendant at the time of his arraignment, as already demonstrated, and a plea of not guilty was entered. We have seen fit to ascertain the facts by means of a certificate supplementing both the present record and the record in the original criminal case No. 48601 (351 S.W.2d 775), which latter record we have also read and considered here.

It is next asserted that defendant was denied a judicial determination of the contention “that he was convicted by perjured testimony.” We are referred to the opinion affirming this defendant’s conviction, 351 S.W.2d 775, and to State v. Eaton, Mo., 280 S.W.2d 63. In a very recent case, State v. Worley, Mo., 383 S.W.2d 529, at loe. cit. 531, we said: "As stated in the case of State v. Statler, Mo., 383 S.W.2d 534, opinion filed October 12, 1964, we recognize that a judgment obtained by the knowing use of perjured testimony should be vacated upon a proper factual showing, but not upon the statement of mere conclusions. The applicable authorities were cited in that opinion. There would be no point in discussing the cases which defendant now cites, supposedly in support of that rule. The rule also applies where the State, knowing at the trial that material false testimony has come in, fails to correct it. Statler, supra.” We are thus required to analyze, as best we can, the defendant’s motion on this point; there must be essential factual allegations, as distinguished from conclusions or speculation. We first revert to the record of the trial of defendant. One Harry Bass was the storekeeper who had been robbed; he knew defendant to the extent that he had seen him on one prior occasion; he saw him in his store on three different occasions on the day in question, and he positively identified him as the robber, both when seen in the “show-up” at the police station and at the trial. He had also identified the robber from a photograph shown to him with a group of other photographs by Detective James F. Reddick. He specifically described defendant’s clothing, the fact that he had a peculiar gait, and that he was stoop-shouldered. Officer Reddick testified: that he did not make the original robbery report but got into the investigation a “couple of months” later; that he talked to Mr. Bass three times, and on each of the last two occasions took a group of photographs to him; that on the second such occasion Bass identified one as a picture of the robber; that this was a photograph of the defendant; that he took defendant into custody in Illinois on March 2, 1960, for return to St. Louis; that Bass positively identified defendant in the “line-up”; that in talking with Bass he also talked to one Norman Benson who was in the store at the time of the robbery and that he showed Benson “the photographs.” When we strip defendant’s allegations of supposed “perjury” from his long and rambling statements of prior conversations and circumstances, as best we can, he merely states: (1) that Reddick’s testimony that Mr. Bass identified a picture from the second group was “deliberate perjury”; and (2) that Reddick’s testimony that “he had not talked with any other persons than Mr. Bass and Mr. Benson” was perjurious, and that a supposed police report stated that Reddick and another detective had “received confidential information * * * that the negro wanted for the above hold up is William Donnell * * As to (1), the totally unsubstantiated statement that Red-dick thus committed perjury is, under all the circumstances, nothing but a conclusion. Bass himself testified positively that he did so and that the picture was of this defendant, and he again identified a reproduction of the photograph at the trial. When we note here that Bass also positively identified the person of defendant on at least two occasions, it becomes obvious that this claim, in addition to constituting a mere conclusion, concerns a mere triviality. It is not and cannot be the purpose of such motions as this to re-try the guilt of defendant or the credibility of the witnesses, nor do we propose to permit their use for such a purpose. State v. Statler, Mo., 383 S.W.2d 534, 537-538, and cases there cited; State v. Worley, Mo., 383 S.W.2d 529, 533. In (2), defendant seeks to contradict Red-dick’s testimony by a supposed statement in a supposed police report (not attached or produced) to the effect that Reddick and another detective had received confidential information identifying defendant as the robber. This contention is apparently directed to the following testimony of Red-dick, as we have gleaned it from the transcript of defendant’s trial: that he (Red-dick) was brought into the investigation a “couple of months” after the holdup; and that he had not spoken to anyone other than Bass and Benson “in reference to the identification of the party that robbed the B & B Market.” A subsequent question illustrates further the context: “You have only talked to Mr. Bass about the identification? A And of course Benson was there too. I talked to him also. I thought you had reference to some outsiders.” It seems entirely obvious that what Reddick was saying was that Bass and Benson were the only ones whom he had asked to identify specifically the man who committed the robbery. No other reasonable meaning appears and the mere contention that Reddick may have received independent, confidential information by hearsay from an outsider concerning the robbery (as distinguished from information coming from one who had seen the robbery and identified the man there) can in no way tend to prove perjury on the part of Reddick. And this is true even though we assume that there was such a police report.

No averment has been made in this motion which raises an issue of fact requiring the hearing of evidence on any claims of perjury. Consequently, the failure of the trial court to go into the matter at the time of allocution is immaterial as is also the failure of this Court to consider the question on appeal. If defendant can state nothing now to raise such an issue, there is no reason to believe that he could have done so previously. And moreover there was no such issue before either Court.

Defendant asserts a violation of his constitutional rights in that he was not furnished with counsel on his appeal, as shown in 351 S.W.2d 775, citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. We note, also, Douglas et al. v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. Missouri has universally furnished counsel to indigent defendants in the trial of felony cases since 1835. RSMo. 1835, p. 485, § 3. The Gideon case, which established the right to counsel in the trial of a felony case, was decided on March 18, 1963. The Douglas case was decided on March 18, 1963. On July 9, 1963, we amended our Rule 29.01 so as to require the appointment of counsel on appeal for indigent defendants in felony cases; while the rule could not legally be effective for 'six months, this Court requested immediate compliance. The judgment and sentence involved here was rendered on September 7, 1960, two and one-half years prior to the ruling in Douglas, supra, that counsel was there required on appeal. At that time, and for generations past, it was. and had been the universal practice of this Court to consider on the merits, regardless of the presence of counsel or the -filing of any brief, all questions sufficiently raised in a motion for new trial and to consider independently of any motion all matters of record, including the information or indictment, the verdict, allocution, and the judgment and sentence. That practice was fol-, lowed in this case. In this Court we have-frequently seen criminal cases where privately employed counsel have elected not to brief and argue on appeal, but have left the merits to the Court’s independent consideration. It has not been our practice to determine (as did the California Court in Douglas) whether any “good * * *' could be served by appointment of counsel”; rather, we have proceeded to consider the merits, and, in effect, to brief for the defendant upon a full transcript, all those points which counsel would have been permitted to brief and argue had he appeared.' It is probable that as large a percentage of criminal judgments have been reversed in this Court without counsel, as have been reversed with counsel. Under these circumstances, we decline to hold, ex post facto, that this defendant was deprived of any constitutional right because his trial counsel did not brief and argue the case on appeal or because other counsel was not appointed to do so. Moreover, the record in the original criminal case here shows no withdrawal of counsel upon the appeal. Trial counsel filed a motion for new trial, presented it (without oral argument), procured an order requiring the preparation of the transcript in forma pauperis, subse-) quently signed and filed a notice .of appeal, and still later approved the transcript on appeal. We have no way of knowing here-whether trial counsel, having . proceeded thus far, abandoned the appeal or whether. he merely elected not to file a brief. In any event, the defendant did file one pro se. If it be material, three different counsel were appointed for this defendant before his first trial, another for his second trial, and a fifth for the prosecution of the present motion. Moreover, it is extremely doubtful,' to say the least, whether this point can be raised upon an appeal from the trial court’s order refusing to vacate its judgment and sentence. State v. Schaffer, Mo., 383 S.W.2d 698.

The last point raised in the brief of counsel is that an insufficient number of veniremen were called for defendant’s jury panel. There is nothing in this record or the prior record to sustain this contention. If these statements are true, the question was merely one of error and not 'of jurisdiction, and it must have been preserved by appropriate objections or motions before the jury was sworn. State v. Nichols, Mo., 165 S.W.2d 674, 675; State v. Childers, Mo., 268 S.W.2d 858; State v. Ready, Mo., 251 S.W.2d 680, 683. In State v. Kinne, Mo., 372 S.W.2d 62, specific objections were made at the time as shown in our transcript at page 18, although it is not specifically so stated in the opinion, and the question there was raised on a direct appeal. The point does not support a collateral attack.

There are sundry allegations in defendant’s motion which his counsel has elected not to brief, and which it is virtually impossible to digest intelligently. We mention the following: that the Habitual Criminal Act was inapplicable because no discharge from the prior confinements was shown. Defendant relies on § 556.280, RS 1949, whereas the new Second Offender Act, Laws 1959, V.A.M.S., effective long prior to defendant’s present conviction and held to be applicable to prior offenses as a procedural’law,' State v. Morton, Mo., 338 S'.W.2d 858, requires only that the defendant be sentenced and subsequently “placed on probation, paroled, fined or imprisoned * * A sufficient showing was made. Defendant seems to complain that he was not given a preliminary hearing. There is no such hearing under our practice where the defendant is indicted, for probable cause has been established by the indictment. Defendant complains that his” counsel did not argue orally his motion for a new trial and that neither he nor the State produced the witness Norman Benson. We do hot sit in judgment upon the discretionary decisions of counsel nor attempt to “second-guess” them. Such complaints as these certainly do not show “ineffective” representation by counsel, nor any suppression of vital evidence by the State.

This defendant has previously filed- here (February 28, 1961) a petition .for habeas corpus which was denied; a motion for leave to proceed in the Circuit Court of the City of St. Louis (May 10, 1962) which was denied, it being obvious that a proceeding might be filed there independently; a petition for a writ of error coram nobis (November 1, 1962) which was denied, with certiorari thereon denied by the United States Supreme Court on June 10, 1963. In this group of petitions the defendant has raised and we have considered substantially all of the contentions he now makes, and in almost identical form. We have not deemed it proper or necessary to hear evidence. In federal proceedings he was denied a writ of habeas corpus, and it was held that he should exhaust his State remedies under Rule 27.26. Donnell v. Nash (C.A.8, October 22, 1963), 323 F.2d 850, certiorari denied, Feb. 14, 1964, 376 U.S. 924, 84 S.Ct. 686, 11 L.Ed.2d 619. This he has presumably now done. Having fully considered all of defendant’s allegations, we are not persuaded that he alleges any fact which, if proven, would show a violation of his constitutional rights. A hearing was therefore not required.

The judgment and order of the Circuit Court is affirmed.

All of the Judges concur.


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

text:
    STATE of Missouri, Respondent, v. Melvin MELLER, Appellant.
    No. 50706.
    Supreme Court of Missouri, Division No. 2.
    Feb. 8, 1965.
    Motion to Transfer to Court En Banc Denied March 8, 1965.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Frank P. Motherway, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    No attorney for appellant.
   PRITCHARD, Commissioner.

Defendant was on February 26, 1964 found guilty of the crime of dynamiting a building with felonious intent to defraud an insurance company. § 560.400. (All statutory references are to RSMo 1959, V.A.M.S.) It was stipulated at the trial (and outside the hearing of the jury) that defendant had previous convictions within the purview of the Habitual Criminal Act, § 556.280, which the court specifically so found, and defendant was tried accordingly. After the jury made its finding of guilt, the court deferred the assessment of punishment until March 9, 1964, at which time such assessment was made at 18 years in the Department of Corrections. Defendant’s motion for new trial was filed, heard and overruled on March 16, 1964, and defendant was then sentenced in accordance with the previous assessment of punishment, credit being given for time previously spent in jail. Defendant had counsel at the trial throughout which he was present. Being found indigent, counsel was appointed for defendant on this appeal, but no brief has been filed. In such case we consider the matters properly raised in defendant’s motion for new trial and portions of the transcript of the record set forth in Supreme Court Rules 28.02 and 28.08, V.A.M.R.; State v. Jackson, Mo., 369 S.W.2d 199, 200 [1].

By assignments of error Nos. 1, 2 and 5, defendant states “The Court erred in overruling defendant’s Motion to Enter Judgment of acquittal at the close of the State’s evidence”; “The verdict of the jury was against the evidence”; and “The credible evidence was not sufficient to support the verdict.” These allegations of error are lacking in particularity and detail as to the grounds or causes therefor. Supreme Court Rule 27.20(a), V.A.M.R. Read together, however, they are sufficient to raise the issue of the submissibility of the state’s case. See State v. Tharp, 334 Mo. 46, 64 S.W.2d 249, 253 [1-3], where an assignment of error that “the verdict is against the evidence and unsupported by substantial evidence” preserved the question as to whether there was any substantial evidence to support the verdict. See also State v. Henderson, 356 Mo. 1072, 204 S.W.2d 774, 777 [5], and State v. Mallory, Mo., 336 S.W.2d 383, 384 [1-3], The jury could reasonably have found these facts: One Margaret Smart was the owner of an apartment building at 600 East High Street, Jefferson City, Missouri. She had procured thereon a policy of-fire insurance (and explosion insurance under an extended coverage endorsement) in the face amount of $40,000 with the New Hampshire Insurance Company. The policy was in force at the time of the explosion (August 15, 1963, a Thursday) which is the subject of the crime charged against defendant. According to statements made by defendant to and in the presence of witnesses Travis, Maddox, Miles and Dickson, Margaret contacted defendant and propositioned him to dynamite her building and defendant was to receive $1,000 therefor from the insurance proceeds.

James Ralph Travis testified that he resided in the basement apartment of Margaret’s building. Three or four days prior to August 15, 1963, he had a conversation with defendant who told him he was going to blow up the building for $1,000 of the insurance money, and that Travis was to be in on the deal without Margaret knowing it and later Travis could collect $1,000 blackmail from her. Defendant also told Travis that he knew the building was insured for $40,000. Defendant had some dynamite, caps and wire, all of which were taken by both of them to the building. Three to five sticks of dynamite in a charge were taped together (one charge with five and one-half sticks) and were distributed around in the building. Witnesses Maddox and Dickson testified that they found six charges of dynamite placed in different rooms and the basement wall of the building, and there were connecting wires leading therefrom to a clock radio (used as a timing device) in a bedroom. The clock radio was purchased by Travis with defendant’s money. Just prior to the explosion, Travis, being then alone, plugged the clock radio, which was set to make contact with the dynamite wires just eight minutes later, into an electrical outlet. He thereupon walked from the room, and as he reached the door to the outside, a single explosion occurred in the front room off of Marshall Street, and Travis was blown from the building to the sidewalk outside. The fire department was called and extinguished an ensuing blaze. E. W.-Hollandsworth came to the building and cut the remaining wires leading to the dynamite charges. Defendant and Travis, after placing the dynamite in -the building, had left over nineteen sticks of dynamite which they took to or near defendant’s farm and buried in a small dry branch bed. These nineteen sticks of dynamite were found and taken by Deputy Sheriff Fred F. Miles and thereafter kept at his farm. The morning after the explosion, at about 6:30 o’clock, defendant told Travis that the dynamiting didn’t go off right, that they “just messed everything up —should go out of town.” At about 11:30 a. m. of that day, they both went to Kansas City, Missouri, in defendant’s car, and registered at the Montgall Hotel under, assumed names. They stayed in Kansas City until the Saturday following August. 15, 1963, then they split up, and Travis returned to Jefferson City. Later, Deputy Sheriff Miles went to the state of California to pick up defendant and returned him to Jefferson City.

§ 560.400, as pertinent, provides that “Every person who shall willfully and maliciously injure or destroy or attempt to injure or destroy any building * * * by the use of bombs, dynamite, nitroglycerine or other kind of explosives; * * ‡ shall be deemed guilty of a felony and upt on conviction therefor shall be punished by imprisonment in the penitentiary, for a ter-m of not less than two nor more than twenty^ five years; * * The evidence which we have set forth above shows beyond a reasonable doubt that defendant committed the crime of felonious dynamiting .of a building as charged and as encompassed within the statute, § 560.400. The state made a submissible case and assignments 1, 2 and 5 are overruled.

Assignments 3 and 4 are, “The verdict of the jury was against the law”; and “The verdict of the jury was against the law as applied to the evidence.” These are insufficient because they are lacking in detail and particularity, and the same aré overruled. Supreme Court Rule 27.20(a) and State v. Anderson, Mo., 375 S.W.2d 116, 119 [5].

By assignment No. 6 defendant contends that the court erred in permittirigAthe state to cross-examine witness Fred Distler, who testified as to defendant’s character ■over the past six years, concerning' the effect upon defendant’s reputation of previous convictions and recent charges of crimes for which defendant had not been tried. In State v. Livers, Mo., 340 S.W.2d 21, 26 [6], it is said, “A witness to a defendant’s reputation for good character may be cross-examined as to the fact of prior arrests or accusations of misconduct for the purpose of testing the trustworthiness, knowledge and good faith of the witness.” We perceive no error in the procedure used by the state here, and assignment No. 6 is overruled. '

The information charges that defendant with others, including the owner of the building in question, acted in concert and “did willfully, maliciously and feloniously injure the said building by the use of dynamite, with the felonious intent to injure or defraud the New Hampshire Insurance Company, the insurer of said building, against the peace and dignity of the State.” Those words are substantially those of the ■statute, § 560.400, and are sufficient. The ¡verdict is responsive and the judgment is in proper form. At one time during assessment of punishment defendant was asked by the court if he had anything to say about 'the matter of punishment. He was present and was fully heard on motion for new trial which is sufficient in lieu of allocution at the ■time of sentencing. Supreme Court Rules .27.09 and 27.10, V.A.M.R.; State v. McWilliams, Mo., 370 S.W.2d 336, 338 [3]. The sentence imposed was within the permissible limits of § 560.400.

.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.


author: HOLMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Anthony Gilbert STOKES, Appellant.
    No. 50670.
    Supreme Court of Missouri, Division No. 1.
    Feb. 8, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied March 8, 1965.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Clarence Bradley Mitchell, Sp. Asst. Atty. Gen., Kansas City, for respond-'-ent.
    Joseph Langworthy, Pacific, Henry D:_ Menghini, St. Louis, for defendant-appel--lant.
   HOLMAN, Judge.

Defendant, Anthony Gilbert Stokes, was charged with and found guilty of the offense of burglary in the second degree. The court found, as charged, that defendant had been convicted of nine prior felonies (the essential facts concerning same being stipulated) and accordingly fixed his punishment at imprisonment in the penitentiary for a term of nine years. See §§ 560.070, 560.095 (2), and 556.280. (All statutory references are to RSMo 1959, V.A.M.S.). Defendant has appealed from the ensuing judgment.

The State’s evidence will support the following statement of facts: W. D. Carter operated a service station located at 3727 Easton in St. Louis, Missouri. George W. Culpepper was employed by Carter as a mechanic. On August 26, 1963, Culpepper quit work at 10:30 p. m. and left the station in a car driven by his cousin. He left his car parked on the filling station premises. A short time later Carter checked all the doors and windows to see that they were locked, and closed the station. At about 11:30 p. m. Culpepper, accompanied by his wife, daughter, and cousin, returned to the station and parked the car on the west side of the building where they sat in the car eating sandwiches. Shortly thereafter*, Culpepper saw a man inside the station attempting to pry open a coke machine. There were two lights burning in the building. He got out of the car and looked through one of the windows and saw,that the man was wearing a leather cap, a leather jacket, and green trousers. At that time his wife went across the street and called tlje police. The man in the station ran out the front door and down an alley between Coz’zens and Cass Streets, with Culpepper .in pursuit. At that point Culpepper lost sight of the man. In a short time the police arrived and he gave them a description of the person whom he had seen in the station and informed them as to where he had last seen him. He then returned to the service station.

Sergeant Zwiefel, one of the officers searching the area, was assigned to the canine division and used a trained police dog in the search. After the search had continued for ten or fifteen minutes the dog harked, indicating that a man was nearby, and Sergeant Zwiefel then (with the aid of his flashlight) saw a man lying face down in the weeds in one of the back yards in that area. He put the dog on a leash and then directed that the person (who was identified as defendant) stand up. The officer then searched the defendant and found 53 nickels and a flashlight in his pockets. A pair of gloves was also found on the ground. The place where defendant was found was lj4 blocks from the service station.

An examination of the service station disclosed that a window in the back of the building had been broken and the glass removed from it. A flashlight and a pair of gloves had been taken from the building, and a peanut vending, machine which was operated by the use of nickels was broken into and the coin box removed. A pair of binoculars had been removed from a desk drawer but were found on the work bench.

Shortly after Sergeant Zwiefel arrested defendant he took him to the service station. At that time he was wearing a leather cap, leather jacket, and green trousers. He was identified by both Culpepper and Carter as a customer of the station. Culpepper testified that he had not been able to see the face of the person in the service station but that such person was dressed in the same manner as defendant was dressed when he was brought to the station by the police.

, On cross-examination Culpepper testified that while he did not recall smelling the odor of liquor on the defendant after his arrest, defendant did act like he had been drinking as his speech was “slurred” and he appeared somewhat incoherent.

Mr. Carter identified the flashlight and gloves which the police obtained from defendant as being his property and stated that those items were in the station at the time it was closed on the night in question. Other facts will be stated in the course of the opinion.

Defendant offered no evidence.

The first point briefed is that the court erred in overruling defendant’s objection to a statement of the circuit attorney in his closing argument relating to the question of whether fingerprints were taken in the filling station. There was no evidence that any effort was made by the police to obtain any fingerprints. However, in his cross-examination of Patrolman Sartorius, defendant elicited testimony to the effect that the flashlight and perhaps a portion of the binoculars contained good surfaces for obtaining fingerprints. On the basis of that evidence, defendant’s attorney argued to the jury that defendant should be acquitted because the State had not proved that he was in the filling station by evidence that his fingerprints had been found therein or on items taken therefrom. In answering that argument the circuit attorney stated: “Let’s not be misled. If we had fingerprints, if they had been taken, if they could have been taken, they would have been taken.” An objection, based upon the fact that the statement was unsupported by the evidence, was overruled.

In support of his contention of error defendant has cited State v. Emry, Mo. Sup., 18 S.W.2d 10, State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654, and State v. Lenzner, 338 Mo. 903, 92 S.W.2d 895. These cases all hold that it is error for the State’s attorney, in his argument, to “use such language as to unmistakably intimate or infer to the jury that he possesses or knows of facts tending to establish the guilt of the defendant on trial, and which are not in evidence, or which for some reason could not be introduced in evidence, or which, if the jury but knew such facts, would cause them to return a verdict of conviction.” State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654, 658. That rule has no application here. The circuit attorney was not attempting to convey to the jury the impression that he knew of evidence, not presented, which, if disclosed, would convince the jury of defendant’s guilt. The statement relates to a negative fact, which could reasonably be inferred from the evidence, that no fingerprints could be or were taken. We have concluded that the statement complained of did not constitute prejudicial error and that the court did not err in its ruling.

Defendant’s attorney, in his argument, commented upon the fact that the State did not produce Culpepper’s wife and cousin as witnesses. In answer to that argument the circuit attorney stated that “Culpepper went to this window, Culpepper looked in. What are the relatives going to tell you? I don’t see where they can add anything to this case. There’s a right of subpoena in here — ” The court overruled an objection by defendant and denied his motion for a mistrial. The circuit attorney, however, did not pursue that line of argument any further. Defendant here contends that the statement constituted error because Culpepper’s wife and cousin were not equally available to him.

We need not determine whether or not Culpepper’s wife and cousin were equally available to both sides. This for the reason that the circuit attorney did not argue that defendant should have called those persons as witnesses. He made an appropriate argument that they could not add anything to the case. He had started another sentence with the words, “There’s a right of subpoena in here,” when interrupted by the objection. We do not know (nor did the jury) what he might have said if no interruption had occurred. What he actually said was not sufficient to convey the thought that defendant could have called those witnesses if he wanted the jury to hear their testimony. Any inference adverse to the prosecution which may have been created by the prior argument of defendant’s attorney was not destroyed by the circuit attorney’s vague and incomplete statement herein complained of. We rule this point adversely to defendant.

The next contention of defendant is that the court erred in making a comment on the evidence in violation of S.Ct. Rule 26.09, V.A.M.R. The point arose in this manner: Defendant’s attorney was making the argument that Culpepper may have burglarized the station and when danger of detection appeared he may have run up the alley, found defendant lying there drunk, and “planted” the flashlight, gloves, and nickels on him. Then the following occurred: “Mr. Schechter: Your Honor, I will object to that, there is no evidence that this man was drunk at any time. The Court: The jury will remember the evidence. I do not recall any evidence in the record of drunkennessAfter the ruling the attorney continued to argue that defendant was drunk and that someone put the items on his person. The instant complaint relates to the statement we have italicized. Defendant has not preserved this point for review because no objection was made to the remark of the court. However, disregarding that omission, we think it is manifest that no prejudicial error occurred. There was some evidence that defendant may have been under the influence of alcohol. In this instance, however, the court reminded the jurors that they should rely on their memory of the evidence. Moreover, the judge did not state that there was no evidence of drunkenness but that he did not recall any. Furthermore, quite some time later in his argument, defendant’s attorney again referred to the fact that defendant was drunk and the circuit attorney objected on the basis that there was “not one iota of evidence about drinking.” In response, the court stated: “The jury will remember what evidence 'there was and what evidence there was hot before them.” For the reasons stated, the point is disallowed.

•' Prior to trial defendant filed a motion to suppress the use in evidence of the arti-lles (gloves, flashlight and 53 nickels) taken irom him at- the time of his arrest. Although the record is not entirely clear it anay be inferred that said motion (based Upon an alleged illegal search following an arrest without a warrant or reasonable cause) was heard and overruled. No complaint is made of that ruling. However, during the trial, defendant made an oral motion renewing his contention that those items should be suppressed. His final point here is that the court erred in overruling .that motion and in admitting said articles 'in ; evidence.

We doubt that defendant is in a position to complain of the ruling on his 'oral motion because the issue he attempted ,to raise must ordinarily be determined (in 'the absence of surprise) prior to trial by motion to suppress. See State v. Garrison, Mo.Sup., 305 S.W.2d 447, and cases cited 'therein. We have, however, reviewed the question ex gratia and have concluded that it is without merit. A review of our statement of facts will disclose that Sergeant Zwief el undoubtedly had reasonable cause to believe that defendant had committed a felony and hence he could make a lawful arrest without a warrant. And, having made a lawful arrest, the officer had a right to search defendant and to take from his ■possession incriminating evidence such as •the articles now being considered. State v. Berstein, Mo.Sup., 372 S.W.2d 57. Upon “this appeal defendant primarily contends ■that the search was unlawful because the arrest did not occur until after the search. 'That is based upon the fact that upon cross--examination Sergeant Zwiefel (after he had ■described the search) testified as follows: '“Q. Did you then take him into custody? .A. That’s correct.”

We agree with' the finding of the trial court that defendant was under arrest from the time the officer took control of his movements and directed him to “stand up.” Section 544.180; State v. Dunivan, 217 Mo. App. 548, 269 S.W. 415 [4], Certainly, under the facts of this case, it may reasonably be said that the search of defendant was incident to a lawful arrest and it ■therefore follows that the' court did not err in overruling the motion and in admitting the articles in evidence.

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

The judgment is affirmed.

All concur.


author: WELBORN, Commissioner. . PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Jack L. NOBLE, Appellant.
    No. 50750.
    Supreme Court of Missouri, Division No. 1.
    Feb. 8, 1965.
    Motion for Rehearing and Transfer to Court En Banc Denied March. 8, 1965.

      Thomas F. Eagleton, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.
    Jack L. Noble, in pro. per.
   WELBORN, Commissioner.

This is a proceeding under Supreme Court Rule 27.26, V.A.M.R. to set aside the appellant’s conviction for murder in the first degree and sentence to life imprisonment therefor. ' The Cole County Circuit Court, after a hearing at which evidence was presented, refused the relief sought.' This appeal followed.

The appellant, Jackie Lee Noble, was indicted by a Cole County Grand Jury on November 23, 1954, jointly with William R. Hoover, Paul Edward Kenton, James William Stidham, Rollie Laster, Don Wm. De-Lapp and Joseph M. Vidauri, and charged with first degree murder in the death of Walter Lee Donnell on September 22, 1954. All of the above named were inmates of the Missouri State Penitentiary in Jefferson, City and the death of Donnell occurred during the riot there on that date. For cases ; involving appellant’s codefendants, see State v. Kenton, Mo.Sup., 298 S.W.2d 433; State v. Stidham, Mo.Sup., 305 S.W.2d 7; State v. Laster, 365 Mo. 1076, 293 S.W.2d 300, and State v. Vidauri, Mo.Sup., 293 S. W.2d 955.

Noble was tried' separately in the Cole County Circuit Court, Judge Dimmitt Hoff- ■ man sitting as judge upon the disqualification of Judge Sam C. Blair. Mr. Sam W. James, Jr., now deceased, a member of the' Cole County Bar, was appointed to defend • Noble. Mr. Richard L. Daly of the St.” Louis Bar assisted Mr. James.

On March 29, 1955, a jury returned a verdict finding Noble guilty of murder in the first degree and assessed his punishment at' life imprisonment. Thereafter, James and Daly filed a motion for new trial on behalf of Noble. By an instrument, dated July 18, 1955 and signed by Noble, James and Daly,. Noble withdrew his motion for new trial,, waived his right to appeal and requested the court to enter judgment imposing sentence upon him according to the verdict of the jury. The court did so. The circumstances surrounding the withdrawal of the-motion for new trial are the matters here at issue.

Noble alleged in his motion that he was ■ placed in solitary confinement around September 18, 1954 and remained there until October 1, 1955. He alleged that, while he was awaiting the ruling of the court on his motion for new trial, he was approached by the prison warden and James and informed that, if he would withdraw his motion for new trial and waive his right to appeal, he would be released from solitary confinement. He alleged that he made several unsuccessful attempts to be released from solitary confinement “upon his merits.” He further alleged he was thereafter advised by James that an agreement had been reached among James, the warden and Mr. James T. Riley, the Prosecuting Attorney of Cole County, to the effect that “petitioner would be released from solitary confinement if he would withdraw his motion for a new trial and waive his right to appeal.” He was also advised, the petitioner alleged, that, if he refused to withdraw the motion and waive his right to appeal, he would be forced to remain in solitary confinement until his appeal had been disposed of. The motion states: “Petitioner after being so advised by his Court appointed attorney, Samuel W. James, Jr., went into agreement with the above named officials, to withdraw his motion for a new trial and waive his right to appeal so he would be released from solitary confinement.” The coercive acts of his counsel and other state officials were alleged to have deprived Noble of his liberty without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States.

Noble testified at the hearing on the motion. He testified to the following: He had been placed in solitary confinement following the riot in September, 1954, and remained there until after his trial and conviction on the charge of Donnell’s murder. After the trial, he discussed his release from solitary confinement with the warden, but was told that it was a matter for the court. He had asked James to file a. motion for new triál in his behalf and to appeal in the event the motion was overruled. James told Noble-that' he had talked to Riley and that Riley told him that Noble would remain in solitary confinement while his case “kicked around” in the courts on appeal. Noble did not feel he could stand the mental strain of solitary confinement for such -a period of time. When James told Noble that an agreement had been made with Riley for his release from solitary confinement if he waived his right of appeal, he agreed to do so.

According to Noble, the arrangement was that he should be released immediately upon the withdrawal of his motion for new trial, but immediate release did not occur. He testified that he inquired of James about the possibility of reinstating his motion for new trial and appealing. He produced a letter dated September 2, 1955 to him from James in response to his inquiry in this regard. In this letter James advised Noble that, in his opinion, an appeal at that time would be impossible. The letter stated:

“At the time of the hearing on your motion for new trial, if you will recall, this matter was discussed with you by the writer and Mr. Daly in detail, and at that time you admitted very readily that, under the law of (sic) the evidence, it would be impossible for you to obtain a judgment of acquittal, and that should you obtain a new trial, either by the circuit court or on appeal to the Supreme Court, you would, of course, face the prospects of getting a more severe sentence than the life sentence imposed upon you. Under that theory, of course, and which I believe is the correct one, it would be a useless proposition to go through the proceeding to obtain a new trial when, as a matter of fact, you might be seriously jeopardized thereby.

“Consequently, you thereupon filed your withdrawal of motion for new trial andj waived your right of appeal, in writing, which was signed by you and filed in the court on the 18th day of July, 1955, * * *.”

As evidence that there had been an agreement between Riley and James, Noble pointed to the following paragraphs in this letter:

“I have discussed with Mr. Riley your situation with respect to your confinement, and he readily has admitted that there has been some delay, and some hitches, in carrying out the terms of the agreement to release you from solitary confinement, but I have just discussed the matter further with him and he has advised me that pursuant to my conversation with him of several days ago, he has made arrangements for your release from solitary confinement, and I am confident that by the time you receive this letter you will have been transferred from solitary confinement to the penitentiary proper, which is in accordance with the agreement made with Mr. Riley by the writer prior to the date of the hearing on your motion for new trial.

“If, however, you have not been transferred to the penitentiary proper, by the time you receive this letter, I will appreciate your writing me immediately and so advising me in order that I may again take the matter up with him.”

Noble also produced a letter from James to him dated July 30, 1955, in which it was stated:

“I have had a further conference with Mr. Riley relative to your case, and he has agreed that he will file no further charge or charges against you, and that at the next meeting of the classification committee he will recommend to the authorities that you be released from confinement and, as DeLapp put it, 'get out with the population of the penitentiary.’ ”

A further letter shown in the transcript as bearing the date of September 21, 1958, which likely should have been September 21, 1955, from James to Noble contained the following:

“As I advised you at the time you withdrew your motion for new trial and waived your appeal in the case in the circuit court here, that as soon as that was done arrangements would be made for your release from solitary confinement. However, a hitch arose in the program, and it was not until several attempts had been made to adjust the matter before you were released.”

James died prior to the filing of the motion. The state did call cocounsel Daly as a witness. Daly testified that he conferred personally with Noble after the trial, once in the company of James, and alone on one or two other occasions. He stated he also corresponded with Noble. Daly testified that, after the trial, there was some uncertainty among Noble, James and himself as to whether or not a motion for a new trial should be filed. After the motion had been filed, there were discussions among them as to the wisdom of attempting to get a new trial which might result in a death sentence for Noble. Daly stated that he talked to Noble, who “at all times proclaimed his innocence,” about such consideration and that eventually the withdrawal of the motion for new trial was agreed upon. As Daly stated: “* * * (T)his verdict was as good as he could expect under the circumstances, and that it was as well to waive (the appeal).” Daly stated that at none of his conferences with Noble, with or without James present, was there discussed the possibility of “trading the right to appeal for getting out of solitary confinement.”

Daly stated that he was concerned about Noble’s confinement in solitary and that the problem might have been discussed at the same conferences that withdrawal of the appeal was discussed. But, according to Daly, “(N)obody ever sat down and said, ‘Here is the way we can get you out of solitary,’ * * Daly stated he never discussed this possibility with any prosecuting officials.

Riley, called as a witness by the state, testified that he had no part in the manner in which Noble and his coindictees were confined following the riot. Riley stated that by prison rule an inmate who has a criminal chargé pending against him ordinarily stays in “administrative segregation” until the case is disposed of. Riley stated he did not discuss the withdrawal' of Noble’s motion for new trial with' either James or Daly and that he participated in no arrangement to trade off Noble’s right to appeal for his release from solitary confinement. Riley testified that the question of Noble’s release from solitary confinement was not discussed between him and James until sometime in September, 1955, after the last of the murder trials in connection with the riot had been disposed of on September 15, 1955. Riley stated that after that time he did have some discussion with prison officials about the release of all seven of the defendants from solitary confinement.

Charles Howard, who as an assistant prosecuting attorney participated in the proceedings for the withdrawal of the motion for new trial in Riley’s absence, testified that he had had no discussion with James, Daly or Riley to the effect that the motion for new trial was being withdrawn in order to obtain Noble’s release from solitary confinement

On the basis of the foregoing evidence, the trial court entered a general judgment, without findings of fact or conclusions of law, denying relief. ......

On this appeal we consider the matter de novo on the record made. State v. Brantley, Mo.Sup., 353 S.W.2d 793; State v. Richardson, Mo.Sup., 347 S.W.2d 165; Supreme Court Rule 28.05, V.A.M.R.

In its brief the state concedes thqt, should the facts be as alleged by Noble, he would be entitled to some relief. The state’s position is that Noble failed to carry, his burden to establish that the facts were as he alleged. Inasmuch as we agree with the state’s conclusion in this regard, we do not decide whether or not some relief might be granted if the facts should have been found as Noble alleged nor what relief might be granted in such event.

Essentially our determination resolves itself into a matter of whether Noble testified accurately to what happened or whether Riley’s version of the events is true. Noble’s version tends to be substantiated by James’ letters. However, cocounsel Daly stated that he was unaware of any bargain for the waiver of appeal in return for release from -solitary confinement. Daly's testimony showed that he was present at the time the withdrawal of the motion for new trial was discussed. His testimony shows further that the decision not to appeal was based upon the strategic consideration that a new trial might produce a death sentence. Certainly as cocounsel having discussed the post-trial strategy with James and Noble, Daly would have been aware of a deal had one been made. Daly’s testimony shows he was aware of the confinement problem, but such problem was not the factor which prompted the decision not to appeal.

Noble points primarily to one sentence in Daly’s testimony as supporting his contention. That sentence appears in the transcript as follows: “I don’t think he waived his right to appeal, he traded that off: just to get out of solitary.” If this remark is to be construed as a declaration by Daly that Noble did trade .•off his.right to appeal just to get out of solitary confinement, it is wholly inconsistent with all of the remainder of Daly’s testimony. Prior to the appearance of this .remark Daly explained at length the consideration. above mentioned which led to .the decision to withdraw the motion for new,.trial. He. further testified that the probability of withdrawing the motion for .new trial in exchange for a release from solitary confinement had never been discussed in his presence. Therefore, there would appear to be no basis for Daly’s concluding that Noble did trade off his right to appeal just to get out of solitary confinement. Viewing Daly’s testimony as a whole, we are convinced that the remark relied upon by Noble would more likely better express Daly’s belief if it were punctuated as follows: “I don’t think he waived his right .to appeal — he traded that off — ■ just to get out of solitary.’!

Noble also- relies on James’ letters as supporting his contention. However, the September 2nd letter'clearly, discusses the decision to withdraw the motion, for new trial as based upon the same consideration as that expressed by Daly. The discussion of release from solitary confinement is not linked in the letter to the decision to withdraw the motion for new trial. Despite the statement in this letter concerning an agreement with ’ Riley, we-see no reason to disbelieve Riley’s testimony that there was no agreement that Noble would be released from solitary confinement if the motion for new trial was-withdrawn. In the September 21st letter, the statement is made that James had told Noble that, as soon as motion for new trial has been withdrawn, arrangements would be made for his release from solitary confinement. However, that statement must be considered in the light of the prison rule which had caused Noble’s solitary confinement or “administrative segregation.” According to Riley, that rule called for such; detention so long as criminal charges were pending against the prisoner.- Riley did not promulgate the rule and was not responsible for its administration. Once Noble’s case had been terminated, he might have had reason to expect release from solitary confinement and James endeavored to assist him to obtain such release. Certainly the statement does not prove the existence of an arrangement among Riley, the prison authorities and James to coerce Noble into surrendering his right of appeal. The other evidence shows clearly the consideration which led to the decision to withdraw the motion for new trial and discontinue the appeal. Although the prospect of continued solitary confinement might have been a factor in Noble’s mind, it was not shown to have been the basis of any bargain between his attorney and the state officials in order to defeat Noble’s right of appeal.

The July 30th letter shows that Noble’s release from solitary confinement was related to a decision on Riley’s part to file no additional charges against Noble. Although’ Noble did not refer to this factor in his testirriony, it is obvious that, under the prison rule, Riley’s decision in this regard was important to Noble’s release from solitary confinement. Undoubtedly, the events of the riot might well have given rise to a multiplicity of charges against the persons' involved and Noble was understandably concerned that no further charges might be filed. However, this letter does not tend to prove the allegations upon which the relief here sought is based.

Viewing all of the evidence, we are of the opinion that Noble has failed to sustain the burden of establishing the allegations of his petition. Therefore, the trial court properly found the issues against him.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

. PER CURIAM.

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

All of the Judges concur.