author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. Henry Cleo NAPPER, Appellant.
    No. 50404.
    Supreme Court of Missouri, Division No. 1.
    July 13, 1964.
    Motion for Rehearing or to Transfer to Court En Bane Denied Sept. 14, 1964.
    Opinion Modified on Court’s own Motion Sept. 14, 1964.

      Lawrence J. Lee, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Robert D. Kingsland, Asst. Atty. Gen., Jefferson City, for respondent.
   HENLEY, Judge.

The defendant, Henry Cleo Napper, was charged with stealing personal property of the value of $50 or over in the City of St. Louis. The information invoked the provisions of the habitual criminal act and alleged that defendant had theretofore been convicted of certain felonies. Trial of the case before a jury resulted in a verdict finding him guilty of stealing property of a value of $50 or more. It was stipulated and agreed between the State and defendant that he had been previously convicted of three felonies, sentenced and imprisoned therefor and subsequently discharged, all as charged in the information. After his motion for new trial was overruled, he was accorded allocution, and sentenced, in accordance with the punishment theretofore assessed by the Court, to be committed to the Department of Corrections for a term of six years. He appealed to this Court, after which his trial counsel who had represented him and was present at all trial and after trial proceedings, withdrew as his counsel. He is represented here by able counsel who has filed a brief in his behalf.

In his motion for new trial he makes nine assignments of error, only three of which are presented for review here, viz., (1) that the evidence was insufficient that the items allegedly stolen had a value of $50 or more, (2) that the Court erred in overruling defendant’s motions to suppress evidence, and (3) that the Court erred in giving instruction No. 3. After a jury had been impaneled and sworn to try the issues, out of the hearing of the jury defendant orally moved to suppress the evidence atid gave as reasons therefor that at the time of defendant’s arrest and search he was a public carrier, that there was no probable cause for the arrest, “and for that reason it is inadmissible as evidence.” At the same time defendant moved to refile a like motion which the Court file disclosed had been filed in the cause in the Court of Criminal Correction, but not refiled in the trial Court or prior thereto submitted or brought to that Court’s attention. Leave was granted to refile that motion and both motions were overruled as being untimely and unseasonably filed. The transcript of the record approved by trial counsel and filed here does not contain this written motion to suppress evidence.

No evidence was offered by the defendant. The evidence adduced in behalf of the State warrants a finding of the following facts. Late in the afternoon of February 27, 1963, Phillip William Wilhauk of Hillsboro, a student at St. Louis University, parked and left his two-door Chevrolet Corvair, in a parking lot at the rear of The Playboy Club, 3930 Lindell Boulevard, in the City of St. Louis, where he was employed. Inside his locked automobile, he left an olive-drab colored suit of clothes hanging and a pair of dark tan man’s shoes, size 10i/£ on the floor in the back seat. He left his work and returned to his automobile at about one o’clock a. m. on February 28, where he found its right door-ajar,-the vent window shattered, the window lock broken, and his suit and shoes missing. He immediately drove to the Lucas. Avenue Police Station where he reported the theft and there found and identified his suit and shoes. He testified that he bought the suit about two weeks before the incident from Downs Store on Grand Avenue for Seventy-Five Dollars and bought the shoes, which he had owned about six months, from Wolff’s for Twenty-Five Dollars. Both articles of clothing were identified by Wilhauk, and the two arresting officers, and then offered in evidence and passed to the jury for their examination over the objection of defendant, the objection being that they were “inadmissible.” At about eight o’clock, p. m., after dark, on February 27 officers James Fitzgerald and Joseph Burgoon of the St. Louis Metropolitan Police Department mobile reserve were driving west in the alley between Grandel Square and Washington Avenue, approximately six or seven blocks from the 3900 block of Lindell Boulevard. Proceeding through the alley the officers observed a Harris taxicab parked on a lot and backed up to a hotel with the cab lights out, the motor running, and defendant in the driver’s seat. As the officers drove onto this lot they also observed one Aaron Burgess, known to them as a “car clotter” (thief), in the automobile of another with the dome light on rifling through a suitcase and clothes. Known also to the officers was Burgess’ method of using a cab as an accomplice for transportation in connection with his theft operations and that he was “working” this night. Approximately twenty feet distant was the cab occupied by defendant. Stopping the patrol car on the lot Officer Fitzgerald got out and as he was approaching the cab defendant attempted to pull away moving the cab approximately five to ten feet from the building, when the officer called to him to halt. While questioning the defendant as to why he was in that area the officer observed a man’s olive-drab colored suit in plain view on the front seat of the cab. To the officer’s questions the defendant replied that he was waiting for a girl friend employed at the hotel, but defendant would not or could not furnish the officer the name or address of the girl friend. The two officers then arrested defendant and Burgess and thereafter, with the permission of defendant, Officer Fitzgerald searched the cab and found under the front seat a pair of men’s dark tan shoes, size 10]4. The defendant, the cab’s busy but temporarily absent passenger Burgess, and the suit and shoes, above described, were then taken to the Lucas Avenue Police Station where Wilhauk later reported these items as missing without his permission from his automobile and identified them as his.

We will treat with defendant’s assignments of error in the order above mentioned.

Only the prosecuting witness testified as to the value of the items taken from his automobile, and his testimony as to value was not objected to by defendant. No objection was made to Wilhauk testifying as to what he had paid two weeks before for the suit and six months before for the shoes. No objection was made that Wilhauk was using an improper standard of value. There was no cross-examination to show that he was using an improper standard. Nor was there any request by defendant for preliminary questioning to determine what standard should be used. The suit and shoes were passed to the jury for their examination. In State v. Bresse, 326 Mo. 885, 33 S.W.2d 919, l. c. 921, this Court said, “[t]he rule seems to be that, where the property is secondhand, * * *, proof as to its cost and its length of use may be put before the jury, and that constitutes evidence of value sufficient to support a finding.” State v. Brewer, Mo., 286 S.W.2d 782, 783. Defendant cites State v. Norman, 101 Mo. 520, 14 S.W. 661, 10 L.R.A. 35, which was reversed for the giving of certain instructions and the failure to give an instruction on petit larceny. The case supports the State’s theory here that the evidence as to value of the suit and shoes was sufficient to sustain the verdict. In the Norman case the only evidence as to value of the property taken was that the owner paid $30 for it eighteen months before the larceny, and the Court said, “[we are] conceding that this evidence, in connection with the fact that the coat was before the jury, warranted an instruction on grand larceny, * * The jurors that tried this case and examined the suit and shoes surely were not without some knowledge as to values. We find that there was substantial evidence that the value of the property involved was more than $50.

The defendant was arrested without a warrant and his automobile searched. Was this arrest and the attendant search and seizure lawful under the facts above related ? We think it was. If lawfully arrested the search of defendant’s automobile was lawful and the evidence discovered thereby was admissible. An officer has a right to arrest without a warrant on reasonable grounds to suspect that the person arrested has committed a felony. State v. Williams, Mo., 14 S.W.2d 434, 435; State v. Raines, 339 Mo. 884, 98 S.W.2d 580; State v. Cantrell, Mo., 310 S.W.2d 866. Here the officers found after dark a known car thief, whose known “method of operation” was to use a taxicab and driver as an accomplice, in the act of rifling through personal effects of another in an automobile with the defendant occupying a taxicab with its lights out and motor running only about twenty feet distant. Beside the defendant on the front seat of the cab and in plain view of the 'officer was a suit of clothes. Defendant moved the cab in an attempt to leave and suspiciously did not reasonably explain his presence in this darkened area on the hotel parking lot. After the arrest under these circumstances, the officer asked permission, searched the cab, and found Wilháuk’s shoes under its front seat.

The time and place, the suspicious actions and words of the defendant, as well as the actions of defendant’s busy but temporarily absent passenger, and the stolen suit in plain view in the cab seat, are circumstances tending to justify the arrest.

There being reasonable grounds to believe that defendant had committed a felony there was probable cause for his arrest, and the contention that the arrest was unlawful is' overruled. It therefore follows that the search for and seizure of the stolen shoes was lawful. The Court did not err in overruling the motion to suppress the evidence.

In his motion for new trial defendant alleges as error, “The Court erred in giving the Jury Instructions No. 2 & 3.” This assignment of error is too general to preserve anything for appellate review. Rule 27.20; Section 547.030, RSMo 1959 (all references to Rules and Statutes are to V.A.M.R., and V.A.M.S., respectively). State v. Lord, Mo., 286 S.W.2d 737; State v. Richardson, Mo., 321 S.W.2d 423.

Other grounds for exception in defendant’s motion for new trial were not presented in his brief filed here, and are therefore deemed waived or abandoned. Rule 28.02. State v. Hayzlett, Mo., 265 S.W.2d 321.

No error being found with respect to those matters the Court is required to consider upon the record before us (Rule 28.02) and for the reasons given the judgment and sentence is affirmed.

All concur.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    Michael MOSS, Appellant, v. WABASH RAILROAD COMPANY, a Corporation, Respondent.
    No. 50445.
    Supreme Court of Missouri, Division No. 2.
    Sept. 14, 1964.

      Sherman Landau, St. Louis, for appellant.
    Fordyce, Mayne, Hartman, Renard & Stribling, Alphonso H. Voorhees, St. Louis, for (defendant) respondent.
   BARRETT, Commissioner.

By an amendment of the Original petition this is now an action to recover $25,000 actual damages for an allegedly false arrest in 1951. A companion case, 1956, in which the plaintiff unsuccessfully sought both actual and punitive damages is Frank v. Wabash Railroad Company, Mo., 295 S.W.2d 16. The incident and arrest involved here was in the vicinity of the railroad’s .Delmar Street station, other false arrest cases involving other youngsters at nearby points on the railroad right-of-way are Manson v. Wabash Railroad Company, Mo., 338 S.W.2d 54 and Bond v. Wabash Railroad Company, Mo., 363 S.W.2d 1. On April 17, 1951, at 4:15 in the afternoon five children, ages 8, 9 and 11, after playing ball on a vacant lot nearby, were observed on the railroad right-of-way throwing rocks and sticks at a passing train. A railroad special agent detained the children, took them to a room in the railroad station and called the police. A policeman, followed by another special agent, took the children to the Twelfth District Station and ninety minutes later delivered them to their homes with directions to report to the police station next day. The following morning the children and their parents appeared at the station and a policeman and a special agent lectured them on the dangers of being on the railroad tracks and particularly of the dangers involved in throwing rocks and other missiles at passing trains. The plaintiff Michael Moss, then aged nine years was one of those five children. Upon the trial of his action for damages for false arrest, twelve years after the event and when he was 23 years of age, a jury returned a verdict in favor of the defendant railroad. Upon his appeal Michael has briefed and argued four assignments of error, three of them relating to the admission and exclusion of evidence and one concerning an instruction.

As to the exclusion of evidence it is urged that the court erred in denying to the plaintiff the right “to show that he had been subjected to humiliation and embarrassment on several occasions by being required to account for his arrest by defendant on the occasion in issue in this case.” It is said that the prejudicial effect of the court’s ruling in this respect was “augmented” by instruction 3 requiring the jury to return a verdict for defendant if the plaintiff “had not proved by the greater weight of the evidence ‘that he was damaged.’ ” Of course as to compensatory damages the general rules in all personal tort actions are applicable and “plaintiff is entitled to recover such a sum as will be a fair and just compensation for the injuries sustained,” but “the recoverable damages are limited to such compensation.” 22 Am.Jur. (False Imprisonment) § 129, p. 436. The point is not urged by the respondent and so is not a determinative factor here but from the jury’s verdict and this record it is indeed arguable that there was a supported finding that plaintiff was not in fact actually damaged, in a compensatory sense, by the incident involved here. Another point of view, although not urged by the respondent, is that the verdict in favor of the defendant was a finding on the merits of no liability on the part of the Wabash, therefore this particular argument relates to the issue of damages only, a problem the jury did not reach or consider.

In any event insofar as testimony of witnesses is concerned or offers of proof (not what plaintiff’s counsel may have said in an opening statement or colloquy with court and counsel) there appear to be but two pertinent incidents, both in the direct testimony of Michael. It was developed that he had never been arrested either before or since the incident of April 17, 1951, and that he was not required to appear in juvenile court on that occasion. It was then established that Michael had served four years and seven months in the Marine Corps. Whereupon his counsel inquired, “And did you fill out an application before you were accepted in the Marines?” Defense counsel, anticipating that counsel would next inquire whether he had been required to explain his 1951 “arrest,” objected on two of several grounds that the application would be the best evidence and that any “juvenile record” could not be used against the’juvenile, Section 211.271 RSMo 1959, V.A.M.S. Plaintiff’s counsel interjected with the response, “We don’t purport to use it against him; we want to use it in his favor.” The court sustained defendant’s objection. Plaintiff’s counsel then went on to other matters, there was no offer' of proof and with the record in this posture the plaintiff is in no position to complain. This is wholly aside from the fact that if Michael was required to explain this “record” to the Marine Corps it must not have been too humiliating or damaging as he successfuly served four years and seven months and was honorably discharged.

The other point in this connection arose when counsel inquired, “Michael, do you at this present time have an application for enlistment in the Military Service?” Michael answered, “Yes sir,” and again the court sustained defense counsel’s objection. Plaintiff’s counsel then made an offer of proof that he had filed an application for enlistment with the Air National Guard and was “required to complete a questionnaire which inquired of him as to whether he had ever been arrested, and, further, that he was required to answer the question that he had been because of this arrest on April 17, 1951.” Again there was no further offer of proof or suggestion and it is not immediately apparent that his having to so answer or explain was very embarrassing to an ex-marine or particularly injurious in the absence of a claim that this particular incident caused him to be rejected. These are the only two pieces of evidence relied on apparently and aside from the fact as instruction 3 required “that he was damaged,” it may be that the jury never reached that issue

The two briefed objections to the admission of evidence are couched in these terms; that the court erred “in its multiple rulings * * * authorizing defendant to introduce evidence of alleged misconduct of children, other than this plaintiff, on unspecified occasions other than the occasion in issue in this case.” Or, second, that the court erred in admitting “the hearsay content of the alleged police report, purporting to record the arrest of this plaintiff,” that it was not an entry made in the regular course of business and “erroneously incorporated references to supposed conduct on other occasions (unspecified) of other children (unknown).” The foundation of both these objections, and to distinguish this case from all other false arrest cases, including the companion case of Frank v. Wabash Railroad Company, supra, is that here “where the plaintiff seeks only compensation for his actual injury, the rule is different. In such an action (where compensatory damages only are sought and there is no claim for punitive damages) evidence of reasonable and probable cause for defendant’s belief in plaintiff’s guilt, or other worthy motive, is not admissible in mitigation of the actual damage sustained.” It is stated that the petition in this case was amended to eliminate punitive damages and ask for compensatory damages only “(f) or the express purpose of eliminating from the trial of this case any extraneous issue of claimed misconduct of other children on other occasions.” It is not necessary, however, to go into the rationale of this doctrine and consider whether in any and all events it is applicable, for the purposes of this opinion it is assumed that there is such a general rule. Adair v. Williams, 24 Ariz. 422, 210 P. 853, 26 A.L.R. 278. It should be pointed out, nevertheless, that Newport v. Montgomery Ward & Co., 344 Mo. 646, 127 S.W.2d 687, does not support the plaintiff’s claim of such a doctrine. The argument may have been made in that case but the court very carefully pointed out that as to one piece of evidence “counsel voluntarily withdrew (the) offer,” that for three objected reasons, one being the failure to introduce the best evidence, the court sustained objections and “therefore that appellants are in no position to complain.” 344 Mo. 1, c. 652, 127 S.W.2d l. c. 689.

The quotation from the Newport case inferentially answers at least in part some of the objections made here. One of the special agents, the one who observed Mike and his companions throwing rocks and stricks and who in the first instance detained the boys, said that he had received a special order to patrol the area of the Delmar station “Due to the difficulties of boys throwing rocks on the trains in that area.” Plaintiff’s counsel made no objection when that testimony was given. From the plaintiff’s witness Frank, the father of Richard in the companion case (295 S.W.2d 16), it was brought out that special agent Murphy (now deceased) in his lecture to the children and parents painted a graphic picture of a Mexican national, in the custody of an immigration officer, injured near the Delmar station when “someone threw some type of an object that hit a window * * * and fragmentation from the glass completely put out one eye, and the other was in such shape that it was practically useless.” Furthermore the witness said that Murphy told them that as a result of this episode a $50,000 damage suit was pending against the railroad and finally even “that the incident had caused some strained diplomatic relations between our Government and the Government of Mexico.” In connection with the testimony of this witness and, to quote plaintiff’s counsel, “on the question of veracity” (Murphy’s) plaintiff offered in evidence the hospital record of Salvador Zepeda Arceo of March 28, 1951 (just a few days before the incident involved here) showing “Admission diagnosis: Foreign bodies, glass, fragments, right eye; No injuryThen plaintiff’s counsel read from Murphy’s testimony in the Frank trial in which he was examined at length as to his “lecture” and whether he had told the parents and children that the Mexican national had been seriously injured and had sued the railroad for $50,000 damages.

In response to this evidence by plaintiff the defendant offered the deposition of Salvador Zepeda Arceo, the Mexican citizen who said that while a passenger on the Wabash train on March 28, 1951, about 5 o’clock and just before getting into St. Louis, “I was hurt during the trip by a rock that was thrown through the window.” There was the deposition of Eduardo Velez Aleman, a fellow passenger of Arceo on the train when the window broke. In describing the incident he said, “It was kind of a cliff near the track of the train and I saw two boys on the cliff throwing rocks at the train. * * * There were two boys. One was about eight years old and one was about six years old. * * * Both boys were throwing rocks. * * * The rocks went through the window in front of me.” Aside from the fact that plaintiff injected this particular episode into the case, there was no objection by plaintiff to any of the quoted testimony.

And briefly as to the police report; the plaintiff’s first witness was the clerk of the records section of the Metropolitan Police Department. Plaintiff had this witness explain certain records, particularly “a salmon-colored card” (the witness called it “an incident card”) bearing the name of plaintiff Michael Moss. This card showed the date of the occurrence involved here, Michael’s age and the fact that “he was taken into custody.” In cross-examination defense counsel had this witness identify as a record of the department the “police report.” Near the close of the case when the report was finally offered in evidence plaintiff’s objections were not the ones he now makes upon this appeal. Then he objected “to this allegation in the police report that juveniles were turned over to them by the above special agent for trespassing on the Wabash right-of-way and throwing sticks and stones at the Wabash train, in the plural. There is nothing to connect up these children to any other train.” That part of the report stating that “the youths and parents were interviewed in the presence of John Murphy * * * who stated they were having particular trouble in that vicinity” was objected to on the grounds that “it is hearsay; and second, there is nothing in this case which in any manner connects up these children with any prior event.”

It is not necessary to say whether this record is hearsay or to go into detail as to its status as a business record. The whole record in this case could be further examined but the quotations are sufficient to put the matter complained of in the context of the trial. It is not necessary to point out that much of the matter complained of was. “merely cumulative of similar evidence-which had previously come in without, objection.” Evinger v. Thompson, 364 Mo. 658, 673, 265 S.W.2d 726, 734; Bond v. Wabash Railroad Company, Mo., 363 S.W.2d 1, 5. In summary as to all the complaints reasonably within the purview of the plaintiff’s objections to the trial court and assuming for the purposes of argument that in part the police report was “hearsay,” there is in final analysis the fundamentally essential “problem of ‘whether it is prejudicial to the other (appellant), so as to warrant or require the granting of a new trial or the reversal of a judgment,’ ” and it might be added at the hands of this court on appeal. Annotation 59 A.L.R.2d 371, 373; Smith v. Wabash Railroad Company, Mo., 338 S.W.2d 16. In conclusion as to these three assignments of error made upon this appeal, considering the objections in the proper context of the trial, including the origin of the evidence in the case, and the nature of the specific objections, it may not be said that the evidence was manifestly prejudicial to the plaintiff’s right to a fair trial so as to demand the granting of a new trial upon this appeal. V.A.M.S. § 512.160; Cammarata v. Payton, Mo., 316 S.W.2d 474, 478; Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239; Mash v. Missouri Pacific Railroad Co., Mo., 341 S.W.2d 822, 828.

Instruction 6 consists of this single sentence: “You are instructed that under the law of Missouri, the records of any proceedings of the Juvenile Court, as well as any police officer’s records for any person below the age of seventeen years, are confidential and are open to inspection only upon order of Court.” This ill-conceived instruction paraphrases and purportedly is authorized by one or more sections of the juvenile code, V.A.M.S. §§ 211.271, 211.321. The objection to it is that it is a “bare abstract statement of purported law with no effort made to apply the alleged principle of law to the facts of this case.” It is urged that the instruction was misleading “under the evidence in this case in that it- had the effect of wrongfully implying to the jury that plaintiff would not be required to reveal the fact of his arrest to a prospective employer or to his military superiors.” What has been said in connection with the admission and exclusion of evidence in these respects may be .sufficient to inferentially dispose of this assignment of error. The records, such as they were (there were in point of fact-no “juvenile court” records), were introduced in evidence by the plaintiff, there was no proof or offer of proof that Michael had or would be required to reveal his arrest to “a prospective employer” and, as indicated, the plaintiff’s proof on this score had to do with the measure of damages not the merits of the cause. As far as the merits of the case and of this appeal are concerned the subject of this instruction was an entirely collateral matter. It is very difficult to conceive of. a good and sufficient reason for the railroad’s offering the instruction- — it-is only fair .to say that it had no place in the case and should not have been given. Fortunately for the respondent, it relates to an entirely collateral matter and as the appellant says it is “a bare abstract statement of purported law.” In the appellant’s argument it is said that the instruction was “deliberately designed and -phrased by defendant to confuse and misl.ead the jury as to ‘‘an important element of plaintiff’s actual damages.” As indicated in another connection, the jury may not have reached the question of “actual damages.” But even if they did it is' not believed that this instruction, as with the admission of evidence, in the context of this trial and in the particular circumstances of this case was manifestly prejudicial and compels the granting of a new trial. V.A.M.S. § 512.160; Cammarata v. Payton, 316 S.W.2d l. c. 481; Mash v. Missouri Pacific Railroad Co., supra.

For the reasons indicated the trial court did not prejudicially err in denying plaintiff a new trial and accordingly the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    MFA MUTUAL INSURANCE COMPANY, Respondent, v. SOUTHWEST BAPTIST COLLEGE, INC., Appellant.
    No. 50343.
    Supreme Court of Missouri, Division No. 1.
    July 13, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Sept. 14, 1964.
    Modified on Court’s own Motion Sept. 14, 1964.

      Elvin S. Douglas, Bolivar, Allen, Wool-sey & Fisher, Harold J. Fisher, Springfield, for appellant.
    Farrington & Curtis, E. C. Curtis, Thomas Strong, Springfield, for respondent.
   HOUSER, Commissioner.

Action by MFA Mutual Insurance Company under The Declaratory Judgments Act, § 527.010 et seq., V.A.M.S., for an adjudication and determination of the rights of the parties under an insurance policy issued by MFA to Southwest Baptist College with respect to a claim for a fire loss, and to adjudge that the policy was canceled and did not afford protection against the loss. Submitted on motion for summary judgment the circuit court adjudged that the insurance policy had been canceled by the action of the college, was void and afforded the college no protection, and that the insurance company was not obligated to pay the amount specified in the policy, $42,500, or any portion thereof. The college has appealed from the summary judgment.

We have jurisdiction. An amount in excess of $15,000 is in controversy, since the amount of the liability from which MFA seeks to be relieved is $42,500.

A previous administration at the college purchased a total of $79,500 insurance on Pike Auditorium, placing $42,500 of the insurance with MFA. The MFA policy contained an 80% co-insurance clause; a provision for cancellation by insured at any time at the request of insured; a provision for cancellation by MFA by giving insured 5 days’ written notice of cancellation, but no provision prohibiting insured from procuring and carrying other or additional insurance or otherwise agreeing upon the effect upon the rights of the parties of carrying such other or additional insurance. A new administration took charge of the affairs of the college. The new business manager found a number of insurance policies in the vault. After looking at them he decided that the insurance program needed attention. Neither he nor the new president (or any other member of the college’s staff, as far as the evidence shows) had any knowledge of the existence of the $42,500 MFA policy. The business manager sought the advice and counsel of a local insurance agent, who caused two state agents to make a survey of- the buildings for the purpose of making recommendations as to the insurance needs. Their report indicated that the auditorium had a sound value of approximately $60,000 and an estimated insurable value of $57,691. They recommended insurance on the auditorium in the amount of $46,200. The board of trustees of the college, acting on a report of its sub-committees, adopted a general plan of 80% co-insurance on its buildings and contents and authorized the president and business manager to take the necessary steps to effect a complete new insurance program. It was the intention of the college officials to cancel all existing policies and to write a whole new program of insurance, purchasing the maximum insurance allowable on every building; to “take all we could get on all of the buildings.” The president and business manager were given broad general authority to cancel all existing policies and purchase new insurance, according to their judgment. The president left the details to the business manager, who undertook to effect the new insurance. The intention was to carry a total of $55,000 on Pike Auditorium and no more, the officials apparently considering that this was the maximum obtainable. There was never any change of intention in respect of the amount, up to the time of the fire. Insurance was taken out on the auditorium for a total of $55,000, in three policies written by three different companies. MFA was not one of the companies sharing this risk. After all of the insurance on all of the buildings within the program had been written, the business manager then caused letters to be written canceling all of the policies of insurance known to the business manager. These letters, all identical in form, stated that the college had adopted a new insurance program and that consequently “the above policy” (referred to by policy number, amount of insurance and expiration date) was enclosed for cancellation as of the date of the letter, and requesting refund of the amount of unearned premiums due on the unexpired term of this policy. For instance, MFA had issued a $2,000 policy on the contents of one of the buildings and, as a part of the cancellation program, MFA received a letter from the business manager stating that the college had adopted a new fire insurance program, and consequently the $2,000 policy was being enclosed for cancellation with a request for tlie return of the unearned premium. MFA acknowledged this letter and canceled that small policy. The correspondence between the college and MFA did not mention the $42,500 policy MFA had issued on the auditorium. If the college officials had known of its existence it “probably would have been cancelled”; the fact that the business manager did not know about that policy was the “only reason” that a cancellation letter was not written on that policy. It was the understanding of the business manager that all existing policies on the college buildings, including Pike Auditorium, had been canceled and as far as he knew, prior to his conversation with the agent after the fire, there was no MFA policy on the auditorium. The auditorium was completely destroyed by fire, during the term of the $42,500 policy. A day or two after the fire the local MFA insurance agent called the business manager and suggested that they get together and start the necessary procedure to adjust the loss. The business manager asked what he was talking' about and for the first time learned from the agent that MFA had issued the $42,500 policy. In reporting to the board of trustees after the fire the president and business manager reported that the college had $55,000 worth of insurance on the auditorium. The business manager stated in writing: “Fire insurance on Pike was increased last fall to a coverage of $55,000.” The college made claims against the three companies which had written the $55,000 policies. These claims were paid in full. After the fire MFA wrote the college that its local agent had brought to MFA’s attention that the college had “requested cancellation” of the $42,500 policy but that MFA had not re'mitted the unearned premium, and enclosed a check for $420 therefor. The college returned the check and made claim under the' policy. MFA then brought this suit. After the taking and filing of depositions of various witnesses MFA filed a motion for summary judgment, alleging that it clearly appears, from the pleadings and depositions that the college replaced the $42,500 policy with other insurance companies with the intent that the other insurance be substituted for the MFA policy; that the substituted insurance should constitute the only insurance on the building, and by reason thereof the MFA policy was canceled and annulled.

The college’s sole point on appeal is that the court erred in finding that the $42,500 policy was canceled through the action of the college in securing new policies of insurance on the property with the intention that the $42,500 policy be canceled because (1) the policy could be canceled only by mutual consent of the parties or by compliance with the policy provisions (request by the insured or 5 days’ written notice by the insurer), and could not be canceled “through a mere intent to cancel” on the part of the college, and (2) the policy had no provision voiding it if there was other insurance and there was no mutual agreement of the parties that the securing of other insurance with the intent that such other 'insurance be substituted therefor would effect a cancellation of the policy.

MFA’s contention is that there was a cancellation under the doctrine of cancellation by substitution and replacement, which has been adopted in a number of jurisdictions. MFA says that this question has never been directly considered by the appellate courts of this state, and urges that we now adopt and apply this doctrine in this case, and hold that the action of the college in procuring new insurance with the intention that it replace existing insurance and be substituted therefor, without any intention to acquire additional insurance, constituted in law an effective, voluntary cancellation of the existing insurance.

The policy provision for cancellation follows:

“This policy shall be cancelled at any time at the request of the insured, in which case this Company shall, upon demand and surrender of this policy, refund the excess of paid premium above the customary short rates for the expired time. This policy may be cancelled at any time by this Company by giving to the insured a five days’ written notice of cancellation with or without tender of the excess of paid premuim above the pro rata premium for the expired time, which excess, if not tendered, shall be refunded on demand. Notice of cancellation shall state that said excess premium (if not tendered) will be refunded on demand.”

The policy did not provide that the procurement of other or additional insurance would effect a cancellation of the policy.

Under the existing law of this state an insurance policy may be terminated and canceled (1) by rescission on some equitable ground such as fraud, deceit, mistake, etc.; (2) by cancellation under the terms of the policy; (3) by cancellation by mutual assent of the parties. Under the existing law a cancellation by one party without the other’s assent could not be accomplished except upon strict compliance with the conditions provided in the policy for cancellation. Farmers Mutual Hail Ins. Co. of Mo. v. Minton, Mo.App., 279 S.W.2d 523, 527, and cases cited; Continental Ins. Co. of New York v. Phipps, Mo.App., 190 S.W. 994, 995; 45 C.J.S. Insurance § 442, p. 67. There would have to be an unequivocal, unmistakable act of cancellation, not dependent upon some future event, Chrisman & Sawyer Banking Co. v. Hartford Fire Ins. Co., 75 Mo.App. 310, 314, and a mere intention to cancel would not suffice to effect a cancellation under the policy provisions. Dyche v. Bostian, 361 Mo. 122, 233 S.W.2d 721, 724; Stone v. Stone, 300 S.W.2d 548; Gardner v. The Standard Ins. Co., 58 Mo.App. 611, 616.

MFA does not contend that there has been a rescission by fraud or any other equitable ground of cancellation.

MFA does not contend that there has been a cancellation under the terms of the policy.

MFA does not contend, and the trial court did not hold, that the policy was canceled by mutual consent. MFA contends that mutual consent to cancellation is not necessary under the doctrine of substitution and replacement; that cancellation results as a matter of law from the unilateral act of the insured in procuring new insurance with the intent that it take the place of existing insurance and with no intent to acquire additional insurance. MFA takes the position that “the question of mutual consent is of no consequence.”

As we understand the doctrine of cancellation by substitution and replacement, as expounded in other jurisdictions, it is part of the doctrine of cancellation by mutual consent; and that “the mere procuring of substituted insurance with the intent to replace existing insurance and without the intent to thereby acquire additional insurance does not per se work a cancelling of the existing insurance. (See Scheel v. German-American Ins. Co., 228 Pa. 44, 76 A. 507, and Ciokewicz v. Lynn Mut. Fire Ins. Co., 212 Wis. 44, 248 N.W. 778, 779.) The distilled rule of Apparel Mfrs. Supply Co. [Apparel Mfrs. Supply Co. v. National Auto. & Cas. Ins. Co., 189 Cal.App.2d 443, 459, 11 Cal.Rptr. 380] is that in order for cancellation to take place by the substitution of one policy for another it must be done by mutual consent or agreement. (See Scheel v. German-American Ins. Co., supra; Home Insurance Co. v. Campbell [Mfg. Co.], 4 Cir., 79 F.2d 588, 590-591.) * * * ” Glens Falls Ins. Co. v. Founders’ Ins. Co., (1962) 209 Cal.App.2d 157, 25 Cal.Rptr. 753, 761. It requires a meeting of the minds of the contracting parties. It contemplates knowledge and agreement by both parties that the policy is being canceled by substitution and replacement. Cancellation is not accomplished by the unilateral act of insured or his agent in forming an intention to substitute and replace. A mere intention on the part of the insured, not communicated to the insurer, is not sufficient to effect a cancellation by the insured, under this doctrine. Baysdon v. Nationwide Mut. Fire Ins. Co., 259 N.C. 181, 130 S.E.2d 311, 315. Before the original insurer may avail itself of the doctrine and escape liability under the policy it has written the intention of the insured to cancel the original policy and replace it by substituting new insurance must be communicated to the insurer. Furthermore, the actual procurement of the issuance of the new insurance with the intention that the new replace the old is not sufficient to effect a cancellation of the old policy. “Procuring additional insurance without requesting the original insurer to cancel its policy does not terminate the policy.” Baysdon v. Nationwide Mut. Fire Ins. Co., supra, 130 S.E.2d, l. c. 317. Something more is required. There must be a meeting of the minds—an agreement and mutual consent that the policy be canceled without reference to the provisions of the policy relating to cancellation. Artificial Ice Co. v. Reciprocal Exchange, 192 Iowa 1133, 184 N.W. 756, 764.

The element of communication to and agreement by insurer or its agent, found in the cases cited by MFA,1 is absent in the case under review. While there was a general intention on the part of the college officials to cancel all existing policies of insurance, no such intention was communicated to MFA in the letter from the college canceling the $2,000 policy, or otherwise. That letter merely informed MFA that the college had “adopted a new fire insurance program.” There was not nor could there have been a specific intention on the part of the college officials to cancel the $42,500 policy, or to buy the $55,000 insurance as a substitute for the $42,500 policy, because the college officials had no actual knowledge of the existence of the $42,500 policy. Even a specific intention to cancel the $42,500 policy would not have resulted in its cancellation under this doctrine unless acted upon, i. e., communicated and agreed to by MFA. Neither MFA nor the college requested the cancellation of this policy. Certainly the letter did not constitute an unequivocal, unmistakable request for cancellation of the $42,500 policy, as required. Nothing indicates that, prior to the fire, MFA considered that the college had made a request for cancellation. Its agent considered the policy in force and effect, as evidenced by the suggestion of its agent concerning adjustment of the loss. That MFA did not consider that a request for cancellation had been made is evidenced by the fact that MFA did not request a surrender of the policy or tender a refund of excess of paid premium above the customary short rate for the expired time, until after the fire. Glens Falls Ins. Co. v. Founders’ Ins. Co., supra, 25 Cal.Rptr., l. c. 759. The unavoidable fact is that the parties did not agree or mutually assent that the $42,500 policy be canceled. We conclude that the facts would not authorize cancellation under the doctrine of substitution and replacement, even if that doctrine were the established law in this jurisdiction.

MFA contends that the college, in asserting that there can be no cancellation except in strict compliance with the policy provision or by mutual consent has completely ignored the rule that the cancellation provisions of a policy of insurance may be waived. Pursuing this theme MFA contends that both parties have waived strict compliance with the policy provisions regarding cancellation; that MFA waived its right to object to the failure of the college to cancel according to the policy provision, and that the college, having claimed the full benefits under the new policies, which it intended as replacement insurance, is in no position to now claim that its attempted cancellation was ineffective. The questions of waiver and estoppel were no part of the pleadings at the time this matter was submitted on motion for summary judgment, were not a part of the submission, and having been raised for the first time in respondent’s brief on appeal, come too late and may not be relied upon in support of this judgment. Stevens v. Missouri Pacific R. Co., Mo.Sup., 355 S.W.2d 122, 127.

MFA vigorously objects that one should not be permitted to collect twice for the same debt or loss or be unjustly enriched; that out of the new insurance policies the college collected $55,000, which was very near, perhaps more than, the value of the building lost by fire, and that in all equity and good conscience MFA should not be called upon to pay the loss again; that the college should not be permitted to collect the full amount of the new policies and at the same time totally repudiate the purpose for which those policies were purchased, which was replacement merely; that to allow such a recovery would be against the public policy of this state. In the absence of a statute prohibiting recovery from several insuring companies of a sum greater than insured’s actual loss or damage, we are of the opinion that the public policy of this statute on this question is to be found in §§ 379.140, 379.145 and 379.160, par. 3, V.A.M.S., which, applying to the situation where fire insurance policies are issued by more than one company upon the same property and suit is brought on any of the policies, provide that the defendant shall not be permitted to deny that the property insured was worth the aggregate of the several amounts for which it was insured (except in cases of wilful fraud or misrepresentation), and that the measure of damages, in case of total loss, shall be the amount for which the property was insured, less depreciation. These “valued policy” statutes become a part of each contract of insurance the same as if expressly incorporated in the policy, Michigan Fire & Marine Ins. Co. v. Magee, 240 Mo.App. 767, 218 S.W.2d 151, 155; put at rest the measure of damages in a suit on a fire insurance policy; arbitrarily fix the same as the amount for which the property was insured, less depreciation, and foreclose this Court from considering whether the college, if it recovers on the $42,500 policy, will have received more insurance for its auditorium than it was worth. Horine v. Royal Ins. Co., 199 Mo.App. 107, 201 S.W. 958.

There having been no cancellation by the parties under the contract provision for cancellation; no cancellation by mutual assent of the parties and no policy provision voiding it if insured took out other or additional insurance, the policy remained in full force and effect as a subsisting contract between the parties, and under our valued policy statutes, and in the absence of a statute prohibiting recovery from several insuring companies of a sum greater than insured’s actual loss or damage, summary judgment should not have been entered in favor of MFA, canceling the policy, but should have been entered in favor of the college on the issues joined.

The judgment is reversed and the cause remanded for the entry of judgment finding the issue of cancellation for the college and against MFA on MFA’s motion for summary judgment and for any further proceedings which may be appropriate.

WELBORN, C., concurs.

PER CURIAM:

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

All of the Judges concur.

      . Bache v. Great Lakes Ins. Co., 151 Wash. 494, 276 P. 549; Wells Petroleum Co. v. Fidelity-Phenix Fire Ins. Co., D.C., 121 F.Supp. 739; Arnfeld v. Guardian Assur. Co., 172 Pa. 605, 34 A. 580; Finley v. New Brunswick Fire Ins. Co., C.C., 193 F. 195; Larsen v. Thuringia American Ins. Co., 208 Ill. 166, 70 N.E. 31; Pagliero v. Merchants Fire Assur. Corp., 9 Cir., 169 F.2d 373; White v. Insurance Co. of New York, C.C., 93 F. 161; Strauss v. Dubuque Fire & Marine Ins. Co., 132 Cal.App. 283, 22 P.2d 582.

      . See, for example, § 203.11, Wisconsin Statutes.


author: PRITCHARD, Commissioner.

text:
    Howard R. BEAUCHAMP, Appellant, v. Alberta BEAUCHAMP, Respondent.
    No. 50451.
    Supreme Court of Missouri, Division No. 2.
    July 13, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Sept. 14, 1964.
    Jonathan E. Clarke, Elsberry, and Green, Hennings, Henry, Evans & Arnold, Thomas C. Coleman, St. Louis, for appellant.
    Robert V. Niedner Niedner, Niedner & Moerschel, St. Charles, for respondent.
   PRITCHARD, Commissioner.

This is a suit to quiet title to two parcels of land upon the ground that the deeds conveying the lands were testamentary in character in that the grantor excepted unto herself all right, title and interest and control of the lands as long as she should live, and upon her death then to the grantees.

Sally S. Beauchamp was the grantor in the deeds. Her son, Arnold S. Beauchamp and his wife, Alberta, who is respondent here, were grantees. Arnold S. Beauchamp died in October, 1956, and respondent is claiming the lands described in the deeds in fee simple absolute as surviving tenant by the entirety to her deceased husband. Sally S. Beauchamp died intestate in May, 1958, and her other son, appellant, is her sole heir, by reason of which he claims the lands. We have jurisdiction of this appeal because title to real estate is in issue between the parties. Const. Mo., Art. V, § 3, V.A.M.S.

The deeds, having been drafted by a lawyer, were executed by the grantor at two different times. Both instruments were in the form of regular general warranty deeds. The first was dated November 11, 1955, and purported to convey approximately 113 acres of land (and an easement) in Pike County, Missouri. After the description this deed recited: “Excepting, unto herself, the said Sally S. Beauchamp, all right, title, interest and control of the above described lands and easements as long as she, the said Sally S. Beauchamp, shall live, and upon her death then to Arnold S. Beau-champ and Alberta Beauchamp, husband and wife, in fee simple absolute.” The second deed, which purported to convey an undivided one-half interest in approximately 34 acres of land, was dated January 29, 1956. Following the description the second deed recited: “Excepting, unto the party of the first part, Sallie S. Beauchamp, all right, title, interest and control, as long as she shall live, and upon her death then to the parties of the second part, Arnold S. Beauchamp and Alberta Beauchamp, husband and wife.”

Aside from the “excepting” clauses in the deeds, there is no limitation in either the granting or habendum clauses. Both deeds were delivered, as conceded by appellant, and both were recorded in the office of the Recorder of Deeds of Pike County, Missouri.

In approaching our task of the construction of these deeds we have available several well-established rules in the wealth of cases on the much litigated question here: Whether the deeds passed a present interest when executed, or whether they are testamentary in character and void as not being in compliance with the statute of wills, § 474.320, RSMo 1959? The first of these rules is that the intention of the grantor is to be ascertained and that effect be given thereto if practicable and if such intention is not contrary to some positive rule of law; and in ascertaining such intention all the provisions of the deed are to be considered. Keller v. Keller, 343 Mo. 815, 123 S.W.2d 113, 115 [1-4]; Leeper v. Leeper, 347 Mo. 442, 147 S.W.2d 660, 662, 133 A.L.R. 586. A construction which will give validity to the deed is favored over one which will invalidate it. Hobbs v. Yeager, Mo., 263 S.W. 225; Mizell v. Osmon, 354 Mo. 321, 189 S.W.2d 306, 311 [7-11]. Although the parties are in dispute as to whether the testimony of the scrivener of the deeds should be received and considered as being evidence bearing on the intention of the grantor, Mrs. Beauchamp, we need not consider that point because as hereinafter set forth we do determine that intention from the words used in the deed itself.

Appellant has cited many cases of this state holding that certain provisions in deeds are testamentary in nature and are void as deeds. Those cases are distinguishable from the case at bar. In Thorp v. Daniel, 339 Mo. 763, 99 S.W.2d 42, the court held that the deed in question positively stated that it was the grantor’s intention that it should not take effect until the death of the grantor. In Goodale et al. v. Evans, 263 Mo. 219, 172 S.W. 370, the habendum clause of the deed (held to be testamentary and void) recited, “To have and to hold the premises * * * from and after the death (of grantor).” “[T]he intention of the grantor by this deed is to convey said property to said Leah J. Evans for life, to take effect on the death of the grantor.” In Aldridge v. Aldridge, 202 Mo. 565, 101 S.W. 42, 43, the court held that the dominant. purpose of the grantor was to make a testamentary disposition of his property by the use of these words after the description in his deed: “[O]n this condition however, that if I, the said Charles Aldridge outlive the said Amelia J. Aldridge the land reverts hack to me in fee. That if I should die first then the said Amelia J. Aldridge shall have this land for her lifetime * * *. In connection with this I give to my wife * * * all my live stock to go to her at my death.” In Hohenstreet v. Segelhorst, 285 Mo. 507, 227 S.W. 80, the deed expressly provided that it would not take effect until after the death of the grantors, and the deed should be held in the recorder’s office until after such death. The quitclaim deed in Kanan v. Hogan, 307 Mo. 269, 270 S.W. 646, did not in any language reserve a life estate, but, stated specifically, “[T]his to take effect .at and after my death.” It is apparent that in these foregoing cases, which are representative of clauses in deeds held to be testamentary in nature, there was language expressly indicating that such deeds were not to take effect until death.

By the use of the words “all right, title, interest and control” in the “excepting” clauses of the deeds, appellant claims grantor clearly demonstrated her intention to postpone the vesting of any present interest in the grantees (the same claim being made as to grantor’s use of the words “upon her death then” to grantees). The case of Wimpey v. Ledford, Mo., 177 S.W. 302, 304 [4], holds that the word “title” may be used synonymously with ownership or right to possession, dependent upon the context. The deed in the Wimpey case recited that the grantors “shall have all controlling power of the above-described premises during their lifetime, and at their death then the title is to pass to parties of the second part” It was held that these words of limitation indicated the intention of the grantors to create a present interest or estate in the grantees, but to defer the enjoyment of the same until after the death of the grantors. See also Christ v. Kuehne, 172 Mo. 118, 72 S.W. 537, where the deed (held nontestamentary) was from husband to wife with the habendum clause provision, “[T]o have and to hold from and after the death” of the grantor “ ‘for and during her natural life,’ and after her death to the grantor’s heirs forever; ‘it being understood that this conveyance is made upon the express condition’ ” that the grantor should “during his lifetime retain the possession and control of the premises here-inbefore described.” See annotations: 11 A.L.R. 67; 76 A.L.R. 646; 31 A.L.R.2d 570. See also 16 Am.Jur. Deeds, § 197, p. 548.

The qualitative incidents of the title to a life estate during its continuance are all the rights of possession, interest and control of the premises. 31 C.J.S. Estates § 38 p. 68; Mathis v. Melton, 293 Mo. 134, 238 S.W. 806, 808 [3-6], It is thus not inconsistent with the granting in the present of a remainder interest, with possession and enjoyment of that estate deferred, that the grantor should describe the incidents of her retained life estate. We do not agree with appellant that those words indicate an intention to postpone the vesting of the estate, but on the contrary, we hold that they indicate an intention to grant an estate in the present, with possession and enjoyment postponed until after the death of the life tenant. Nor does the appellant’s argument that the grantor’s use of the words “upon her death then” to grantees aid him. These latter words merely indicate a cessation of the life estate (and emphasize the reservation of such life estate, see Barker v. Barker, Mo., 219 S.W.2d 391), at which time the previously granted interest of grantees would become vested in possession and enjoyment. There are no words in these deeds which would negate an intention of the grantor to pass a present interest at the time of execution thereof. Christ v. Kuehne, supra, 172 Mo. 118, loc. cit. 72 S.W. 538; O’Day v. Meadows, 194 Mo. 588, 92 S.W. 637, 645; Sims v. Brown, 252 Mo. 58, 158 S.W. 624, 627 [5]; and Wimpey v. Ledford, supra, loc. cit. 177 S.W. 303 [2, 3],

The trial court did not err in finding that the deeds in question conveyed to the grantees an estate in fee, subject only to grantor’s right of possession during her lifetime.

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: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Roland John AUBUCHON, Appellant.
    No. 49909.
    Supreme Court of Missouri, Division No. 2.
    Sept. 14, 1964.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, William L. Hungate, Spec. Asst. Atty. Gen., Troy, for respondent.
    Stephen W, Skrainka, Husch, Eppen-berger, Donohue, Elson & Cornfeld, St. Louis, for appellant.
   EAGER, Judge.

Defendant was found guilty by a jury of first degree robbery by means of a dangerous and deadly weapon; upon a finding by the Court of five prior felony convictions he was sentenced to a term of forty years’ imprisonment, after the Court bad first considered and overruled a rather exhaustive motion for a new trial. This defendant was jointly indicted with one Charles Cochran, but a severance was granted. The defendant was represented at the trial and is represented on this appeal by most assiduous appointed counsel.

In substance, the evidence disclosed the following facts: the filling station of Sweeney and Son at North Broadway and East DeSoto in St. Louis was robbed of approximately $147.88 at about 7:00 p. m. on April 7, 1962. The exterior of the station was well lighted at the time. The lone attendant, Wayne Love, was outside working on his car when a man (later identified by Love as Charles Cochran) approached him from the rear of the station, pointed a revolver at him, and ordered him inside. When Love had gotten inside, this man took the money in his coveralls, ordered him to unlock the “back room,” pushed him in there and took the money from the cash box; when all this was completed, the man backed out and slammed the back room door. • As Love opened the door to go into the back room he had seen a man standing outside the station, “just standing,” with a scarf wrapped around his head; Love thought this man was “facing in” the station. About 15 or 20 seconds after the inside man slammed the door, Love heard running, the words “Halt. Stop,” and two shots. After about 35-40 seconds he opened the door and called the police. Love did not identify the man who was outside the station. He was sufficiently acquainted with defendant Aubuchon to speak to him. He identified the revolver produced as an exhibit as the same one or similar to the one used by the man who robbed him.

Patrolman Albert Lancaster and Major Joseph J. Gallagher of the St. Louis Police Department, not in uniform and driving an unmarked car, pulled into the filling station at the time of the holdup because the car which Love had been working on resembled one reported in a robbery. Lancaster testified: that he saw a man standing at the south end of the station looking in the window; this man had on a gray, mackinaw or car coat and a scarf over his head; Lancaster jumped out. on the passenger’s side, started toward the man saying “halt, police officers”; the man was then facing the officers, he looked straight at Lancaster from a distance of about 25-35 feet, and the officer saw the man’s face; thereupon the man pulled his coat collar over his head, turned, and ran down an incline back (east) of the station to Bulwer Street, thence south on Bulwer, with Lancaster in pursuit; Lancaster also testified that the man turned his head as he started down the incline, apparently to see if he was being followed. At this time Lancaster was almost close enough to grab him. Lancaster .continued the pursuit on Bulwer to East Prairie, thence east to an alley and down the alley to Gano, where the man made a right turn and he lost him. During the first part of this pursuit Lancaster fired one warning shot. Major Gallagher, in the meantime, had tried to follow in the car and he picked up Lancaster, who immediately broadcast a description of the man and a request for a pickup; very shortly thereafter they met Officer O’Hearn about two blocks away, with a man in custody whom Lancaster promptly identified as the man he had pursued; this man was dressed in the same manner (except for the scarf). Lancaster positively identified defendant at the trial as the man whom he had thus pursued. This witness was cross-examined at some length from notes which defendant’s counsel had made at the time of an interview; the notes had been very promptly transcribed. Lancaster had made the police report and he had also given a statement to. the warrant office; one or both of these-had been signed by him.

Major Gallagher saw a man moving around the southwest (front) corner of the station, moving toward the rear; this man ran through the back lot and Lancaster chased him. Gallagher had gotten out of the car after he stopped, but he did not see this man’s face; he saw a scarf “across the top of his head and down the back of his head”; Gallagher re-entered his car when the chase began, followed as best he could on the streets, and soon located Lancaster; he confirmed the latter’s statement about finding defendant in the custody of Officer O’Hearn. Officer O’Hearn testified that he heard, the broadcast description while cruising the neighborhood, that within one to two minutes thereafter he saw a man running across East Grand just east of Broadway (about two blocks from where Lancaster lost his man) and arrested him in a parking lot; that this man was breathing heavily, was perspiring, and appeared tired; he was wearing a gray car coat and work pants, with nothing on his head. This officer identified the defendant as the man whom he had thus arrested.

Officer Edward Mitchell arrested Charles Cochran (the joint indictee) at 11:00 p. m. on the next evening after this robbery, at his mother’s home. The mother gave the housekey to Mr. Mayfield, a parole officer, and they entered. They found Cochran lying on the floor with a loaded .32 caliber pistol in his right hand. Mitchell stepped on his hand and disarmed him. The revolver offered and received in evidence was identified' by Mitchell as the one he took from Cochran. Mitchell had gone there on call to assist cither officers and he met them and Cochran’s mother standing on the street. This officer testified that Mrs. Cochran was afraid of her son. All of this evidence Went in without objection.

Anna Mae Gore, a sister of Charles Cochran, testified: that defendant and Cochran and two others were at her place early in the afternoon of April 7, 1962, but left between 2:00 and 3 :00 p. m. She then lived at 121 East Grand, alone; this address was in the general vicinity of Sweeney’s filling station, perhaps four or five blocks away. She had known defendant for about twenty years; her brother Charles had been staying sometimes at her home and sometimes at his mother’s. On the same afternoon at -about 4:00 or 4:30 defendant, Charles Cochran, one Mandino and Skip Hayes were there; all had a drink, and this present defendant (whom she called Junie) “displayed a gun” which was either the same one or similar to the one introduced as an exhibit; he merely showed it and then put it back in his pocket. At around 5:30 or 6:00 o’clock all four left, but they soon returned; thereafter Aubuchon, the present defendant, took the revolver out of his pocket and handed it to Charles Cochran who asked him where the shells were; defendant then gave Cochran some shells and the latter “loaded the gun” and kept it, putting it in his pocket. In about twenty minutes thereafter and at about “dusk” Cochran and Aubuchon left, but before leaving the defendant said,— “let’s go up to Sweeny’s and get Sweeny’s” that Wayne was working up there, and that “they kept quite a bit of cash on Saturday evenings.” That her brother said “Okay”; that defendant Aubuchon borrowed a scarf from her and “they” told her to stay there, that they were “on foot” and they wanted a place to go; that they went out through the alley toward Bulwer Street; that defendant was dressed in a dark gray car coat and tan trousers. On cross-examination of this witness the following was developed: that she had appeared without subpoena, but at the request of the Circuit Attorney; that about three years previously another brother, James LeRoy Cochran, was tried twice in the federal court for the robbery of the Roosevelt Savings Bank; that she was not present at his first trial; that she heard that defendant Aubuchon had testified in one of these trials; that she did not know what had caused that brother’s arrest. She stated, volunteering an answer to a remark of defense counsel, that she did not “suspect the defendant is the informer.” She admitted that she had called defendant’, mother at 2:00 a. m. within the past week and had talked about “this” (present) trial; that the stated purpose of the men in transferring the pistol was “to go get some money”; when asked if she would be happy to see defendant up in jail she replied: “Well, when we do these things, we must be punished for it, whether it’s me, you, or whoever it is. It doesn’t make me happy to see anyone go in jail, and —.” On redirect, the following occurred: “Q Where is your brother, Charles Cochran? A Jefferson City, Missouri. Q In the penitentiary? A Yes. MR. SKRAINKA: Objection, Your Honor. That’s not in this case. MR. KOSTER: Well, I would like to ask a couple more questions, Judge. THE COURT: Maybe he will connect it up. I will hold a qualified ruling on that objection, Mr. Skrainka. Go ahead.” It was further developed at that time, without objection, that James LeRoy Cochran had also been tried in the state court about six months to one year previously for armed robbery and sentenced to ten years’ imprisonment; and, finally, that the witness had been sometimes known as Mrs. Hayes, but she was not married to Hayes.

The fact of defendant’s prior convictions, the service of sentences, and his discharges from imprisonment were stipulated. The defendant did not testify. On his behalf the following evidence was developed: that he had worked three days immediately preceding the day of the robbery at a Venetian blind plant, and that his wife had later picked up his check; that a brother of his mother had recently offered to give him work on his farm near Annapolis, Missouri, or possibly get him work at a sawmill and furnish him and his “wife and kids” a home on the farm. Thomas Crowell, who had lived in the same building with defendant for three or four weeks before April 7, 1962, and had been defendant’s landlord, testified: that on the afternoon of April 7, 1962, defendant and his wife and two friends of defendant were in his living room; that they had two or three beers and that defendant’s wife said they needed milk for the baby and that defendant left to get the milk; that this was about 2:30-3 :00 p. m.; that defendant had two children. The Court, on objection, refused to let the witness state the ages of the children. Crowell’s wife corroborated the fact that defendant left, supposedly to get milk. Eugene Paul Hayes testified: that he lived with Anna Mae Gore for three weeks and that a group, including himself and her, shot themselves with “Valoinhaler,” — “We all shot the stuff at Junie’s house” and he (defendant) used it; that the witness was in the workhouse on April 7, 1962, for stealing cigarettes and shoplifting; that he had also been convicted of burglary, larceny and “strong-arm robbery,” and had served penitentiary sentences both in Missouri and Texas; that he had practically grown up with defendant and Charles Cochran. All of the foregoing testimony went in without objection.

Defendant’s mother testified: that she operated a restaurant on the corner of East Grand and Broadway, and lived upstairs with her husband; that she owned the restaurant, and that defendant (who wag 31 years old) had worked for her “off and on” but “steady” for about two years, except for the three days before his arrest; that she did not pay him in money, but he got from her all or most of the food and milk for his family, that she gave him money for clothes for the children and for spending money, and “paid on his rent, gas and electric bills, — most of his bills”; that her restaurant was not open on Saturdays or Sundays but that she would leave the key where he could find it; that she had testified at both federal court trials of “LeRoy” Cochran, under subpoena, and that later another Cochran brother looked for her and her son (defendant) with a shotgun; she denied sending a man to persuade Anna Mae Gore not to testify in the present trial, but stated that Anna Mae had said that “she would get even with us some way.” On recross-examination of this witness it was developed over objection that defendant was not married to the woman he was living with. Defense counsel then put this young woman, Janice Eckenfels, on the stand, and she testified that she was 19 years old, that she had lived with defendant for four and one-half years, and had two children by him, one of whom was one year old, the other soon to be four; that she had been married to one Eckenfels who received a life sentence to the penitentiary about ene month after their marriage ;• that she had used the name Aubuchon and was so registered'for Social Security, she being employed. She corroborated the fact that during the afternoon of April 7, 1962, she sent defendant from the Crowells to get milk, around 3 :30 or 4:00 o’clock.

We may find it necessary to refer to further details of the evidence in considering defendant’s points and argument, but this lengthy discussion will suffice for the .present.

Defendant’s first point is that the Court erred in not requiring the State, on motion, to advance the costs of sundry depositions which he wished to take. A defendant is, of course, permitted to take depositions under the authority of § 545.400 (all statutory references are to RSMo 1959 and V.A.M.S.) and Criminal Rule 25.10, to be used conditionally. These provide, essentially, that the depositions shall be taken as provided in civil actions, but they make no reference to costs. The motion listed the names of eight witnesses and asked that the costs of all such depositions be “paid by the state.” The motion was filed six days before the trial. In substance, defendant’s contention is that his counsel could not get any reporter or notary public to take the depositions unless the cost thereof was advanced, and that the indigent defendant could, not do so, hence the only practical method was the advancement of the costs by the State. These witnesses had all been listed as State’s witnesses. We note here that § 550.040 provides that (in criminal cases of this class) if the defendant is acquitted the costs shall be paid by the State; we note also, § 550.050, that if the defendant is convicted and is unable to pay the costs the county shall pay all the costs, except such as were incurred on the ■part of the defendant. The latter provision bas long been a part of our statutory law, it ■constitutes a clear injunction that no costs incurred on behalf of a defendant, indigent or not, are to be paid by the county, and nowhere is any obligation laid upon the State. The whole matter of costs in criminal cases is statutory.

Both in the motion and here counsel has raised the question that the failure thus to furnish defendant with free depositions constituted a violation of various constitutional rights, including due process, the administration of right and justice (Art. 1, § 14, Mo.), the right to defend one’s self (Art. 1, § 18(a), Mo.), and a denial of equal protection. The trial court, in denying the motion, expressly held that no such rights were violated and that there was no statutory authority for an order requiring payment by the State, conceding that the taking of depositions was authorized.

The taking of depositions at all, civil or criminal, is a privilege granted by the State and upon such terms as the State may fix. Counsel seeks to analogize this supposed right to the rights of indigents to appointed counsel and to free transcripts to-be filed without docket fee. We see no true analogy. Such requests as the present one could be expanded almost indefinitely, — to include expert witnesses in many fields, paid investigators, chemists, etc. The State of Missouri has done much over the years in furnishing an adequate defense to indigents in felony cases; more may remain to be done, but the legislature has certainly not provided for the payment or advancement of the cost of defendant’s depositions and the courts have no authority to order any such payment. We do not find the various cited federal cases, treatises, law review articles, committee reports, excerpts from speeches or cases from other states either controlling or particularly persuasive. The Missouri cases cited are generally not in point; however, in the case of State v. Chapman, Mo., 365 S.W.2d 551, where defendant sought a physical examination at the expense of the State, the Court said, loc. cit. 552-553: “‘A request by accused [when incarcerated] that he be permitted to undergo a physical examination so it may be used as evidence at the trial is addressed to the sound discretion of the court, and in the exercise of discretion such an examination may be permitted or denied.’ * * * However, in none of these cases was the requested physical examination to have been at the expense of the State. The right of the defendant to an examination by a specialist at the expense of the State would depend upon either a statute or rule granting such right or that it was essential to due process of law. We have no such statute or rule in this State, and such an examination at the expense of the State, at least under the circumstances shown in this case, certainly is not essential to the minimum requirements of due process under either the Missouri or United States Constitution.” Many of the federal cases cited concern failures to furnish indigents with appointed counsel or with sufficiently ■complete transcripts. We have no such questions here. Counsel’s attempted constructions of other Missouri statutes in such manner as to alter the plain meaning and legislative intent evidenced in those we have qited are unsound. We hold there is no ■statute or rule of court in Missouri which fairly requires or authorizes the State to pay for (except upon acquittal) or to advance the costs of depositions taken or desired by a defendant. We further hold that neither the failure to so provide nor the failure of the Court to so order is a violation ■of any constitutional rights of defendant, federal or state. As a corollary to the foregoing and not as a ground for the ruling, we note that defendant could have taken freely the depositions of any and all desired witnesses upon written interrogatories.

We have discussed the foregoing point .and discuss the next one because both would, in all probability, be controverted upon a remand if not determined here. The second point is that the Court erred in not requiring the production of the police report made by Officer Lancaster and also a statement which he had made to the “warrant office.” Counsel claims that in this, also, defendant’s constitutional rights were violated,—the right of confrontation, due process, and the right to compulsory process under Art. 1, § 18(a) of the Missouri Constitution. This contention was developed during the trial in colloquies between the Court and counsel, and also upon questions to the Assistant Circuit Attorney out of the presence of the jury, it being considered that he was sworn and was testifying. Subpoenas duces tecum had been issued for these documents, and in actual effect, the matter was ruled as though upon a motion to quash the subpoenas ; the Court declined to enforce them and sustained objections to the production of the documents. As already stated, this point only involved prior written statements made by Officer Lancaster. That witness had been produced by the Circuit Attorney’s Office for an interview with defendant’s appointed counsel, and as the latter talked with the witness he made notes which were promptly transcribed. These notes were used by counsel in the cross-examination. The documents sought were not produced or used during the trial by counsel or by any witness for refreshing his recollection or otherwise.

Counsel cites a great number of federal authorities and cases from other states, apparently to show that our prior Missouri cases on the subject are unsound. We are not persuaded that they are. There is no general right of discovery by statute or rule in Missouri in criminal cases. We have considered similar matters in: State v. Crayton, Mo., 354 S.W.2d 834; State v. Cochran, Mo., 366 S.W.2d 360; State v. Hinojosa, Mo., 242 S.W.2d 1; State v. Gilliam, Mo., 351 S.W.2d 723; State v. Redding, Mo., 357 S.W.2d 103; State v. Simon, Banc, Mo., 375 S.W.2d 102; State ex rel. Page v. Terte, Banc, 324 Mo. 925, 25 S.W.2d 459; State ex rel. Phelps v. McQueen, Banc, Mo., 296 S.W.2d 85. Some of these cases involved production before trial, others production at trial for the supposed purpose of impeachment. Counsel says that it makes a difference here that the papers desired were under subpoena, whereas in some of the cited cases they were not. We note also that in some they were. It is true that a subpoena may and usually does result in a production of the paper in court, but it does not alter the basic admissibility or right of inspection when the question is properly raised. Generally, we have held that the defendant’s counsel should be permitted to inspect any report or paper which a witness has referred to or used on the stand to refresh his recollection. Crayton, supra, and cases there cited and discussed; Simon, supra. We have also held very specifically that there should be a showing of the probable materiality of the paper, Crayton, Simon, Hinojosa, Gilliam, and that a mere fishing expedition is not to be permitted “upon the possibility of impeachment” or for prying into an adversary’s case. Simon, supra, and other cases just cited. The propriety of requiring the production for the defendant of documents such as prior reports and written statements of a witness in the hands of the State, is in the first instance, a matter resting largely in the discretion of the trial court. As already stated, there is no general right of discovery in criminal cases in Missouri. Documents such as those sought here are written as a part of the initial preparation of the State, in contemplation of a prosecution. Whether expressly so made by statute or rule or not, there remains in them inherently an element of work product, and perhaps of privilege. The State is not permitted in any possible way to discover facts from a defendant; we are unwilling to open up, carte blanche, the files of the State to a defendant. We have reached that point in our criminal jurisprudence where we should consider, and balance, the rights of the public against some of the recently pressed rights of the defendants. We hold now that, if there is a satisfactory showing that a report or statement of a witness in the hands of the State is of such nature that without it, the defendant’s trial would be fundamentally unfair, then it should be produced; otherwise not. And this decision rests, in the first instance, in the discretion of the trial court; we may later consider, if and when necessary, an abuse of that discretion. If the trial court wishes to examine the document before ruling, it may do so.

Looking again at the record in this case, there was no such abuse. Defendant’s counsel had interviewed Officer Lancaster at length and had cross-examined him from the transcribed notes of that interview and from a sketch which was made at that time. From the context of the cross-examination and from counsel’s expressed reasons for wanting the papers, it is obvious that all he hoped to show thereby was, in substance, that the witness had previously made somewhat different statements concerning: the precise point at which he had lost the defendant in his chase (resulting from Lancaster’s unfamiliarity with the street names which he admitted at the trial) ; whether defendant was actually looking in the filling station window when he first saw him, or merely standing at the southwest corner near the window; whether defendant had pulled up his jacket collar when Lancaster approached; and whether defendant had glanced back as he ran down the incline. There was not even an inference that Lancaster had not at all times positively identified the defendant as the man he had seen and chased. This witness testified very frankly and freely, and counsel conceded that his testimony was “generally truthful.” The matters just recited are details and they concern nothing fundamental to the defense. Moreover, there has been no showing that even on these details the documents would impeach the witness’ testimony. Lancaster admitted certain minor discrepancies between his statements (and sketch) at the interview and his testimony at this trial. Under these circumstances, there was no abuse of discretion in refusing to require the production of the documents.

It is impossible to discuss all the authorities and texts cited on this point by defendant’s counsel. The rule in some other states many differ, but generally much is left to the discretion of the trial judge. Reference has often been made to the case of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103. So far as we are concerned, we agree with the Supreme Court of Indiana when it said in Anderson v. State, 239 Ind. 372, 156 N.E.2d 384, 385 (as partially quoted in Simon, supra) : “We do not question the right of the United States Supreme Court to establish rules of practice and procedure for the federal courts. However, we are neither responsible for nor bound by such rules. We are only responsible for and bound by the rules of practice and procedure as established in the state of Indiana, and so long as they guarantee to every citizen his constitutional rights no federal question is involved. The rule which appellant asks us to adopt does not involve any constitutional question. The action is not required by any statute or rule of law "known to this jurisdiction. The adoption of such a rule would constitute a serious departure from the rules of judicial procedure which have, for centuries, protected both the interests of society and the rights of its individual members who may have defied its laws.” It has been conceded generally that the Jencks case merely involved the right of supervision of the federal courts, and not a question of due process. And that matter has since been regulated by Congressional action. U.S.C.A. Title 18, § 3500. No constitutional rights of the present defendant were violated when the court declined to order the production of the police report and the statement. Situations may well be conceived where the production of ■statements, reports and perhaps other documents of exhibits should be required in order -to make the trial fundamentally fair, balancing this with the public interest. Thus, if ■it be fairly shown that a material prosecuting witness had previously made a statement of facts which completely exonerated the defendant, or which would totally change the degree of a crime, this should be pro■duced. We do not foreclose such cases. We merely rule this one, reaffirm our previous cases, and perhaps clear up the Tulings to some extent.

We consider next defendant’s point 5. When Anna Mae Gore was on the stand for re-direct examination, the State brought out the fact that her brother Charles Cochran, defendant’s co-indictee, was in the penitentiary in Jefferson City. The jury had been advised from the beginning of the case that Cochran and Aubuchon had been charged jointly with this robbery. The clear implication from this evidence was that Cochran had been sentenced for his part in this particular robbery. While the objection to the answer is shown in the record as coming immediately after the answer was completed, we recognize the difficulty at times of getting in a timely objection to a question and answer such as this; after the State’s counsel first asked where the witness’ brother was, and received the answer “Jefferson City” this followed: “In the penitentiary? A Yes.” There is a fair inference that the answer followed too quickly for an objection. The court withheld its ruling on the objection while permitting further questions, but essentially the obj ection was overruled and the evidence remained. If it be necessary here, which we doubt, we may and do invoke the rule of plain error. Rule 27.20(c). This point has been fully preserved in the motion for a new trial and since. We are unwilling to rule it upon a technicality. The Assistant Circuit Attorney magnified this error, substantially, by stating in his final argument that “Cochran is in the penitentiary,” as were others of his friends, and that defendant was the only one “of the whole bunch still on the street.” We mention this argument as merely emphasizing the prejudicial effect of the evidence, since no objection was made to the final argument at the time.

We have held that it is error to show in evidence or to tell the jury that a jointly accused defendant has been convicted or has pleaded guilty. State v. Mull, 318 Mo. 647, 300 S.W. 511; State v. Stetson, Mo., 222 S.W. 425; State v. Castino, Mo., 264 S.W.2d 372; and see 2 Wharton Cr.Evi. (12th Ed.) § 439, p. 215. So, also, have we held that evidence of the acquittal of one jointly accused is improper. State v. Recke, 311 Mo. 581, 278 S.W. 995, 1000; State v. Brown, 360 Mo. 104, 227 S.W.2d 646, 653. Were this not the law, the value of a defendant’s right to a separate trial under § 545.880 and Rule 25.07 might be considerably dissipated. The theory of our statute abolishing the distinction between principals and accessories, § 556.170, is that every defendant who joins in the commission of a crime is liable, on his own, as a principal; but he is also entitled to be tried on his own without having his guilt prejudged by what has happened to his co-defendant. This statute has obviated the old rule under which it was proper and perhaps necessary to show the conviction of the principal before an accessory could be convicted. 2 Wharton Cr.Evi., supra. The State seeks to justify the admission of this evidence on the “framework” of other evidence, apparently meaning that defense counsel had shown on cross-examination that another brother had been convicted of robbery, and that the witness herself had been living, unmarried, with one Hayes. It is true that many unsavory factors were developed in connection with persons directly or indirectly involved; that, however, cannot justify the State in putting in additional poison by way of inadmissible evidence. The argument that this evidence was material because it tended to show that Anna Mae Gore could no longer be seeking leniency for her brother, is too thin to outweigh the prejudicial effect of the evidence. We are convinced thát the evidence was improper; we have given considerable thought to its prejudicial effect,— in the light of the background of the defendant himself, and also in view of the fact that the evidence fairly showed that a robbery had been committed by one identified as Cochran, while the guilt of defendant depended upon proof of his aiding and abetting; in other words, that their respective convictions would depend on somewhat differing facts and proof. We have been unable to find, however, that the evidence was harmless and we rule it prejudicial. The case will be reversed for this reason.

The other points involve alleged errors in the giving and refusal of instructions, in the admission and exclusion of evidence, and in connection with the final argument; it may be that none of these matters will occur upon another trial. We shall not add to this opinion by considering them, except to remark on Points 3 and 4, that the Court was not required, either on the “unique facts of this case” or otherwise, to give an instruction withdrawing any “adverse inference” supposedly arising by reason of defendant’s failure to testify, nor was it required to instruct upon the theory that defendant was an “accessory before the fact.” As to any other alleged errors, the State may consider the brief filed here and the objections made, and govern itself accordingly.

For the reasons assigned, the judgment is reversed and the cause remanded.

All of the Judges concur.