author: HOUSER, Commissioner. HOLMAN, Judge

text:
    Leta M. LEUZINGER, Appellant, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., a corporation, Defendant, and North Kansas City State Bank, Respondent. Leta M. LEUZINGER, Appellant, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., a corporation, Respondent, and North Kansas City State Bank, Defendant.
    Nos. 51034, 51168.
    Supreme Court of Missouri, En Banc.
    Nov. 8, 1965.
    Motion to Modify or for Rehearing Denied Dee. 13, 1865.

      Robert B. Langworthy, John R. Cleary, Kansas City, for appellant, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel.
    Darrell L. Havener, Robert C. Canfield, Kansas City, for respondent. Merrill Lynch, Pierce, Fenner & Smith, Inc., Watson, Ess, Marshall & Enggas, Kansas City, of counsel.
    Wm. Coleman Branton, Kent E. Whit-taker, Kansas City, for respondent, North Kansas City State Bank, Brewer, Myers & Branton, Kansas City, of counsel.
   HOUSER, Commissioner.

Action by Leta M. Leuzinger against a brokerage firm (hereinafter “Merrill Lynch”) and a bank to recover $29,562.82 for breach of defendants’ obligations as brokers and bankers. Merrill Lynch filed a motion for summary judgment, which was sustained as to that defendant. The bank filed a motion to dismiss, which was sustained as to the bank. Separate appeals were taken to this court by plaintiff. The two appeals were consolidated for hearing, and will be decided in one opinion.

These are the conceded, undisputed facts: Plaintiff is the wife of W. C. Leuzinger. Early in July, 1959 plaintiff made a telephone call to an account executive of Merrill Lynch. After identifying herself plaintiff stated that another employee of Merrill Lynch had previously conferred with her and her husband, and that she wanted to open a securities account with the brokerage firm. Asked what type of account, plaintiff said that she wanted to open an account where securities can be purchased, paid for in cash, sold, and the proceeds credited to the account. Plaintiff instructed the account executive to put the account in the name of her and her husband as joint tenants. The executive mailed to plaintiff’s home address the firm’s regular and customary “Joint Account with Right of Sur-vivorship Cash Transactions” form, to be signed by both plaintiff and her husband, dated, and returned so that the account could be opened. Several days later the new account card, bearing the signatures of W. C. Leuzinger and Leta M. Leuzinger, dated July 9, 1959, was returned to the office of Merrill Lynch. It is reproduced as follows:

“JOINT ACCOUNT WITH RIGHT OF SURVIVORSHIP
CASH TRANSACTIONS
JUL 16 1959 Stencil Here NA-4 ( — MR. WALTER C. LEUZIN-GER
MRS. LETA M. LEUZINGER BOX 403-Y, ROUTE #6 PARKVILLE MISSOURI (_653-16974 1741
“TO: MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
“Dear Sirs:
“With respect to our joint account with right of survivorship we confirm that:
“1. In all matters pertaining to the account you may act upon orders and instructions from either of us.
“2. Upon the death of either of us, all securities, funds and property in the account shall he the sole property of the survivor.
“3. The foregoing shall also extend to your successors, by merger, consolidation or otherwise, and assigns.
(Signed) W. C. Leuzinger (Signed) Leta M. Leuzinger
“Date July 9, 1959”

Plaintiff instructed the executive by telephone to purchase certain securities for the joint account, which instructions were carried out. In that transaction Mr. Leuzinger gave no instructions or directions. From July 8, 1959 through December 10, 1962 Merrill Lynch handled approximately one hundred transactions for the joint account. With the exception of two transactions which took place shortly after the account was opened, in which plaintiff gave the instructions, all of these transactions were undertaken pursuant to instructions from W. C. Leuzinger. On December 10, 1962 Merrill Lynch held certain securities, the property of W. C. Leuzinger and plaintiff, in said account. On that day, without any written or unwritten request or authorization by plaintiff, but upon request of W. C. Leuzinger, Merrill Lynch sold all of the securities in the joint account, reduced the same to cash, and received and held for the account of W. C. Leuzinger and plaintiff the sum of $59,125.65. On and prior to December 10, 1962 a checking account, standing in the joint names of plaintiff and W. C. Leuzinger, was maintained at the defendant bank. On request by W. C. Leuzinger Merrill Lynch disbursed the entire proceeds of the joint brokerage account by its check for $59,125.65 made payable to “North Kansas City State Bank for account of W. C. Leuzinger and Leta M. Leuzinger” and delivered the check to W. C. Leuzinger, without the written or unwritten authority or consent of plaintiff. W. C. Leuzinger presented the check to the bank and requested that it be deposited in the joint checking account. The bank accepted the check for deposit to' the joint checking account, the bank endorsing the check as follows:

“ ‘Credited to the account of THE WITHIN NAMED PAYEE Absence of endorsement guaranteed KANSAS CITY STATE BANK North Kansas City, Missouri’ ”

Upon the crediting of the proceeds of the check to the joint checking account W. C. Leuzinger, without the written or unwritten authorization or consent of plaintiff, immediately thereafter withdrew from the account the entire proceeds of the check in the sum of $59,125.65, and appropriated the same to his own use.

Plaintiff’s petition admitted that the brokerage account was maintained in the names of W. C. Leuzinger and Leta M. Leuzinger “as joint tenants with rights of survivor-ship, and not as tenants in common.” The theory of the petition as against Merrill Lynch was that the brokerage firm breached and violated the terms of its agreement with plaintiff by disbursing funds out of the joint brokerage account by check which was not specifically drawn so as to require the personal endorsement of plaintiff and by delivering the check to W. C. Leu-zinger without the consent or approval of plaintiff. Plaintiff pleaded that the written agreement required Merrill Lynch to draw checks so as to require her personal endorsement, and to deliver any such check jointly to plaintiff and W. C. Leuzinger, or upon the joint order of both of them, and that by delivering the check to W. C. Leuzinger as it did, with knowledge that plaintiff had a joint interest in the proceeds, Merrill Lynch made it possible for W. C. Leuzinger to divert the entire amount of the proceeds to his own use, and deprive plaintiff of her interest therein, and thus Merrill Lynch “in legal effect converted to its own use the said $59,125.65.”

Plaintiff’s petition pleaded as against the bank that the bank breached its obligations to plaintiff and acted without authority in depositing the proceeds of the check to the joint checking account without the personal endorsement of plaintiff thereon, and in thereafter paying the net proceeds of the check to W. C. Leuzinger without the written consent or authorization of plaintiff. Plaintiff charged the bank with conversion by negotiating and transferring to W. C. Leuzinger the proceeds of the check as it did, without plaintiff’s endorsement and approval, by “wrongfully” enabling W. C. Leuzinger to divert the entire amount of the proceeds of the check to his own use and deprive plaintiff of her interest therein.

Defendants’ answers admitted the facts pleaded, but denied the legal consequences plaintiff attributed to them.

On the appeal from summary judgment for Merrill Lynch:

Plaintiff’s sole point: Error in sustaining the motion for summary judgment; that the pleadings and affidavits on file did not sustain Merrill Lynch’s burden of showing that it was entitled to summary judgment as a matter of law; that on the contrary they clearly establish that Merrill Lynch was not entitled to judgment.

Plaintiff’s argument runs in this wise: The securities and the proceeds resulting from their sale were held by the Leuzin-gers “as joint tenants or tenants by the entirety.” Each had an interest in the whole, a fact which was known to Merrill Lynch. While Merrill Lynch had the right to act upon the order of plaintiff’s husband to sell the securities, the agreement authorizing Merrill Lynch to act upon orders and instructions from either husband or wife did not entitle Merrill Lynch to distribute jointly owned proceeds as it did, without plaintiff’s knowledge, acquiescence and consent. When Merrill Lynch received the proceeds of the sale of the securities it held them in a fiduciary capacity, and owed to plaintiff the duty, as a trustee of the proceeds, to keep plaintiff fully informed of all facts pertinent to the transaction. Since the account was maintained in the joint names of plaintiff and her husband “it would have been consistent and correct” for Merrill Lynch to issue its check payable to plaintiff and her husband. Instead, Merrill Lynch made the check for the whole of the proceeds of the sale payable to the bank in a manner which “it knew, or must be said to have known, could result in the deprivation of plaintiff’s property”; that thus and thereby Merrill Lynch “breached its agreement”; “exercised unauthorized acts” of dominion over the funds and “wrongfully misappropriated” or “caused and allowed another to misappropriate the proceeds,” and consequently Merrill Lynch is liable to plaintiff for breach of its fiduciary duty.

In support of her thesis plaintiff cites 12 C.J.S. Brokers § 27 and Martin v. Hieken, Mo.App., 340 S.W.2d 161, for the general rule that the relationship of broker to his customer is fiduciary and confidential in character; that the broker’s obligations are as exacting as those imposed upon a trustee, and include the duty of keeping the customer fully informed of all facts pertinent to the transaction; Feltz v. Pavlik, Mo.App., 257 S.W.2d 214, for the proposition that one joint tenant cannot deprive the other of his interest in jointly owned property by his appropriation of it; Johnston v. McCluney, Mo.App., 80 S.W.2d 898, for the rule that a trust arises where a broker sells his customer’s bonds without the latter’s knowledge or consent and appropriates and disposes of the proceeds for his own purposes, 12 C.J.S. Brokers § 28 for the general rule that a broker is liable as for a conversion where he wrongfully misappropriates, sells or otherwise exercises unauthorized acts of dominion or ownership over a customer’s funds. We recognize the general rules stated in these authorities, but they are of little assistance. None of the cases cited by plaintiff arises out of facts similar to the situation now before the Court. No authority is cited by plaintiff on the question for decision, viz., whether a broker is liable to one joint tenant of a joint brokerage account as for a breach of trust, misappropriation or conversion of joint funds where, without the knowledge, acquiescence or consent of that joint tenant, but at the direction of the other joint tenant, with whom the broker has had a long-continued course of dealing under a written agreement authorizing the broker to act upon instructions from either joint tenant, the broker issues a check to clear the joint account, making it payable to a designated bank for the account of both joint tenants, and after the check is deposited in the designated bank the joint tenant who gave the directions to the broker wrongfully converts the whole of the bank account to his own uses and purposes to the exclusion of the other joint tenant.

The brokerage firm is not liable, for three reasons:

(1) Merrill Lynch had broad general authority to act upon the instructions of W. C. Leuzinger alone; authority which was sufficiently inclusive to cover the disbursement of the fund of the joint account. Plaintiff signed a writing, Exhibit A, in which in plain, simple, unequivocal language she confirmed that Merrill Lynch could act upon orders and instructions from either W. C. Leuzinger or Leta M. Leuzinger in all matters pertaining to the account. “All matters” is an all-inclusive term, embracing the termination of the account and including directions as to the method, mode and manner in which the final disbursement of funds should be accomplished in closing out the account. The grant of authority contained no limitations, exceptions or provisos. In particular, it did not require disbursements from the account to be made by check payable to W. C. Leuzinger and Leta M. Leu-zinger, or to the order of both, or in such manner as to require Leta M. Leuzinger’s personal endorsement, as plaintiff contends. Neither the petition nor any exhibit attached to the petition indicates that Merrill Lynch was obligated to obtain the approval and consent of, or to inform, one joint tenant before following the orders and instructions of the other. Plaintiff’s rights are governed by the writing which she signed, and she may not now complain that Merrill Lynch did that which she authorized that firm to do. Esmar v. Haeussler, 234 Mo.App. 217, 115 S.W.2d 54, 62.

Pursuant to the general duty of a stockbroker to act in good faith with customers and to make a complete and full disclosure of all material facts concerning a transaction, if the stockbroker knows of facts and circumstances which would lead an ordinarily careful and diligent person to believe that one joint tenant of a joint brokerage account was in the process of wrongfully converting to his own uses and purposes the interest of the other joint tenant, a duty to inform the latter would arise, and in such case the broker would be derelict in disbursing the whole account to the joint tenant under suspicion, without first informing the other and obtaining consent and approval to the disbursement. This leads us into the other reasons why Merrill Lynch is not liable.

(2) The manner in which Merrill Lynch executed W. C. Leuzinger’s instructions was not inconsistent with plaintiff’s interest in the joint account, and

(3) there is nothing in the admitted facts to indicate that W. C. Leuzinger did or said anything which under the circumstances would have aroused the suspicions of an ordinarily careful and diligent stockbroker.

The check issued by Merrill Lynch was made payable to “North Kansas City State Bank for account of W. C. Leuzinger and Leta M. Leuzinger.” Plaintiff concedes that “The proceeds check was made payable to the Bank for the benefit of appellant and her husband,” and that the check showed on its face that the proceeds of the cheek constituted jointly owned property in which plaintiff had an interest. Plaintiff was specifically named in the check. Her interest in the proceeds of the check was clearly recognized and sufficiently defined and preserved. Considering the form in which -the check was ordered to be made payable it was reasonable for Merrill Lynch to conclude that the joint funds were being withdrawn from one joint account for transfer by this device to another joint account. In truth and fací that is exactly what happened. For all intents and purposes, from the viewpoint of any reasonably careful and diligent stockbroker, the withdrawal from the Merrill Lynch account appeared to be wholly consistent with the wishes, purposes and intention of both owners of the joint account.

Nothing indicates that the Leuzingers were having any marital difficulties, or that Merrill Lynch was apprised of any lack of harmony as between the joint tenants. W. C. Leuzinger and Merrill Lynch had engaged in 98 transactions over a period of 314 years in all of which W. C. Leuzinger acted alone and not in concert with his wife, and there is nothing to indicate that during this considerable course of dealing plaintiff had taken any exception whatever to the manner in which her husband was transacting the joint business. There is no showing that Merrill Lynch had actual or constructive notice of any fact or circumstance which would have put a reasonably careful and diligent fiduciary on notice or suspicion that W. C. Leuzinger’s instructions with respect to the check were part of a plan or scheme on his part to sever the funds from the joint estate or that his modus operandi was calculated to wrongfully deprive plaintiff of her interest in the funds. The fact that W. C. Leuzinger was withdrawing all of the funds, alone and of itself, would not be sufficient to raise a duty on Merrill Lynch to notify plaintiff. It is significant and we observe that plaintiff was deprived of her interest in the funds not by any wrongful act or misappropriation on the part of Merrill Lynch while the funds were under its control and it was accountable, but by the wrongful act of plaintiff’s husband after the joint property had been disbursed by Merrill Lynch to W. C. Leuzinger, a person authorized to receive them — after the funds had been safely transferred to a bank account in which plaintiff had a joint interest.

On the appeal from the bank’s dismissal:

Plaintiff’s sole point: Error in sustaining the motion to dismiss the petition for failure to state facts upon which relief could be granted. Plaintiff argues that the facts stated in the petition impress on the bank a position of trust as to the proceeds of the check; that the bank received the check as trustee for both plaintiff and her husband, imposing upon the bank a duty “to insure” that plaintiff not be deprived of her interest in the jointly owned proceeds; that on its face the form of payment gave the bank actual notice that the funds constituted jointly owned property in which plaintiff had an interest; that with this notice the bank “negotiated the said proceeds check without obtaining” plaintiff’s consent, or her endorsement, and without advising her of the fact that the. check had been presented for payment. Therefore the bank acted without authority and in violation of its duty to plaintiff in depositing the check in the joint account; it should have obtained plaintiff’s authority to deposit the money. Plaintiff claims that it can be inferred from the manner in which the check was drawn that W. C. Leuzinger intended to deprive plaintiff of her joint interest; that by ordering the check made payable to the bank W. C. Leuzinger “was able to initiate and consummaté his devious plot without her knowledge,” and that the bank, by failing in its duty, allowed the scheme to be consummated. Furthermore, says plaintiff, the joint deposit statute, § 362.470, V.A. M.S., did not authorize the bank to permit W. C. Leuzinger to withdraw the funds from the joint account, under the facts of this case.

We have determined that the bank was within its lawful rights in accepting the deposit, endorsing the check and depositing it to the joint account, without securing the endorsement of plaintiff. The check was made payable to the bank, not to the bank and W. C. Leuzinger and Leta M. Leuzinger. The names of plaintiff and her husband appeared on the check not as payees, but apparently for the purpose of directing the payee bank as to the identity of the persons who owned the funds represented by the check and for whose account it was issued. It was not necessary for the bank to notify plaintiff that this check had been offered for deposit by her husband, or that the bank had deposited it and credited it to their joint account. There was nothing in the form of the check or in the fact that it was presented for deposit, or otherwise, that would charge the bank with notice of W. C. Leuzinger’s intention to wrongfully appropriate the proceeds of the sale of the securities in the brokerage account, or that he was “initiating or consummating” a “devious plot.” When the check was offered to the bank for deposit the bank was bound to presume, in the absence of notice to the contrary, that the check had been issued, and that it was being deposited, in good faith and for proper purposes. To charge the bank with the duty of making inquiry concerning the background and bona fides of every transaction out of which checks offered for deposit arise, or to stop and notify the other joint depositor when one of them makes a deposit in a joint account, would seriously interfere with commercial transactions. The form in which the bank was named payee did not constitute the bank a trustee for the Leuzingers, nor did the bank assume the duties of a trustee when it accepted the deposit. In effect, although not in terms, plaintiff contends that this was a special deposit, whereby the bank assumed the position of a bailee or trustee in reference to the deposit. This, however, was not a special deposit, for it is not pleaded that there was any agreement, express or implied, between W. C. Leuzinger and the bank, or direction to the bank, that the deposit not be commingled with the assets of the bank and used as its own but be kept intact, distinct and apart from the funds of the bank as a separate deposit for a specific purpose. Not having been made with any such conditions or limitations attached, the deposit was a general deposit, notwithstanding the bank may have known of the source vr character of the money deposited. Hershey v. Northern Trust Co., 342 Mo. 90, 112 S.W.2d 545, [5]. In the case of a general deposit the relationship between the bank and the depositor is that of debtor and creditor, and not trustee and cestui que trust. Butcher v. Butler, 134 Mo.App. 61, 114 S.W. 564; 10 Am.Jur.2d Banks § 339.

No claim upon which relief could be granted is stated against the bank for wrongfully accepting the deposit of the check.

Finally, does the petition state a claim against the bank for allowing one joint depositor to withdraw the funds deposited, without the authority of the other joint depositor?

The bank defends its action solely on the basis of the joint deposit statute, § 362.470, V.A.M.S., which provides in effect that when a deposit is made in the name of the depositor and another person and in form to be paid to either, or the survivor of them, such deposit and any additions thereto made by either of such persons, shall become the property of such persons as joint tenants and may be paid to either during the lifetime of both, or to the survivor of them after the death of one of them. A deposit made within the purview of § 362.470 is presumptively the property of the depositors as joint tenants, subject to withdrawal by either without the consent of the other.

Whether § 362.470 is applicable depends upon the form, manner and circumstances under which the joint bank account was established and maintained. The petition does not plead or attach as an exhibit any written or printed form of depositors’ agreement. All we know from the pleading is that the checking account “stood in the joint names of plaintiff and W. C. Leuzinger.” There is nothing further to indicate the exact form or manner in which the bank account stood, except that it was a “joint checking account.” From the pleading we conclude that the account stood on the bank records in the names of “W. C. Leuzinger and Leta M. Leuzinger.” There is nothing in the petition or in any attached exhibit to indicate that the account was in form payable to either or the survivor of them, or that in setting up this account the parties complied with § 362.470. Where no compliance with § 362.470 is shown there is no presumption of joint tenancy. Jenkins v. Meyer, Mo.Sup., 380 S.W.2d 315 [5]. The form of the account, “W. C. Leuzinger and Leta M. Leuzinger,” does not indicate an intention to create a joint tenancy. Longacre v. Knowles, Mo.Sup., 333 S.W.2d 67, 71 [7].

The bank takes the position that plaintiff having alleged and argued that she and her husband maintained a joint account in the bank thereby admitted that this was a joint tenancy. This does not follow. “The expression ‘joint account* is, by long continued common usage, a rather general and often erroneous term. It is often and indiscriminately applied to accounts which are held as tenants in common, as tenants by entirety, as joint tenants with right of survivorship, and to accounts which simply carry authority to check.” Harrellson v. Barks, Mo.App., 326 S.W.2d 351, 360. A joint bank account may or may not be a joint tenancy, depending upon the intention of the parties. For instance, regardless of the form of a deposit, a joint tenancy is not created where the account is made joint purely for convenience and without intent to create any property interests. 48 C.J.S Joint Tenancy § 3, p. 920. Plaintiff is not to be foreclosed simply because she alleged that this was a “joint account.”

Eliminating from consideration the joint deposit statute, § 362.470, we recognize the rule lately announced in Clabbey v. First National Bank, Mo.App., 320 S.W.2d 738 [3], that the rights and duties as between a bank and those in whose names a joint credit deposit is made is ordinarily governed by contract, express or implied; and that where several persons make a deposit to their joint credit the bank must have the signatures of all of them appended to a check against the fund, or take the risk of payment. 320 S.W.2d l. c. 741 [4]; 9 C.J.S. Banks and Banking § 334; 10 Am. Jur.2d Banks § 550. “Permitting withdrawal from a joint account without authority from all the joint depositors may render the bank liable to a depositor not authorizing the withdrawal.” 10 Am.Jur.2d Banks § 500.

Proceeding from these general considerations to the particular situation of a joint deposit in the names of a husband and wife, we are of the opinion that in the absence of a governing statute, an agency of one spouse for the other, or some other contractual arrangement that money so deposited may be paid to either or only one of them, the funds may not be withdrawn except on checks or orders signed by both husband and wife; that the bank cannot, without special authority, pay money out of such a hank account on checks signed by one spouse alone. This for the reason that a deposit in the joint names of a husband and wife is presumed to be a tenancy by the entirety. McIntyre v. McIntyre, Mo.Sup., 377 S.W.2d 421 [7]; In re Baker’s Estate, Mo.App., 359 S.W.2d 238; State Bank of Poplar Bluff v. Coleman, 241 Mo.App. 600, 240 S.W.2d 188; Craig v. Bradley, 153 Mo.App. 586, 134 S.W. 1081, 1082. See also Madden v. Gosztonyi Savings & Trust Co., 331 Pa. 476, 200 A. 624, 117 A.L.R. 904 [12], The same incidents which are affixed to a tenancy by the entirety in other property attach to such a deposit. Craig v. Bradley, supra. One of the incidents of a tenancy by the entirety is that any act affecting the title to property thus held must be by joint act. Badger Lumber & Coal Co. v. Pugsley, 227 Mo.App. 1203, 61 S.W.2d 425. The husband, acting alone, may not bind the wife by a sole contract, Austin & Bass Builders, Inc. v. Lewis, Mo.Sup., 359 S.W.2d 711, or in the case of real estate thus held, he may not subject the property to a mechanic’s lien. Wilson v. Fower, 236 Mo.App. 532, 155 S.W.2d 502, because the estate is not held by moieties or halves, but both tenants hold and own the entire estate as a single person. A. J. Meyer & Co. v. Schulte, Mo.App., 189 S.W.2d 183 [4]. The money on deposit in a joint deposit of husband and wife does not belong to the husband, nor is it half the husband’s and half the wife’s or part his and part hers. The deposit, made in their joint names, and not to them or either of them, belongs to them “undividedly,” and in the absence of an agreement that the money can be paid to either or only one of them it cannot be withdrawn except upon checks or orders signed by both of them, “and the bank could pay differently only at its peril. To hold otherwise would put it in the power of either to destroy the estate by entireties by withdrawing the fund and applying it to his or her own use, without the joinder or acquiescence of the other spouse; which is directly opposed to the nature and character of a true estate by entireties, like this one.” Milano v. Fayette Title & Trust Co., 96 Pa. Super. 310, 314. See also Gish Banking Co. v. Leachman’s Adm’r, 163 Ky. 720, 174 S.W. 492, L.R.A.1915D, 920.

Plaintiff did not plead any agency or other contractual arrangement authorizing the bank to pay on the check of either or only one of them. On the contrary, plaintiff pleaded that the bank “acted without authority and in violation of its obligations to plaintiff in * * * paying to the said W. C. Leuzinger the net proceeds of said check without the written consent or authorization of plaintiff.”

As the case now stands on plaintiff’s pleading, plaintiff has stated a claim upon which relief can be granted against the bank, and it was error to sustain the motion to dismiss as to the bank.

Accordingly, the judgment in case No. 51168 is affirmed, and the judgment in case No. 51034 is reversed and the cause remanded for further proceedings against the bank.

PER CURIAM.

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

HYDE, HENLEY, FINCH, EAGER, and DONNELLY, JJ., concur.

HOLMAN, J., dissents in separate dissenting opinion filed; STORCKMAN, C. J., dissents and concurs in separate dissenting opinion of HOLMAN, J.

HOLMAN, Judge

(dissenting).

I respectfully dissent from the opinion of Judge HOUSER. In regard to Merrill Lynch, it is my view that the agreement authorized it to act upon the orders of either of the joint tenants in regard to the purchase and sale of securities and related matters. However, in the absence of specific authorization otherwise (which did not exist in this case), I think any disbursement of funds due the joint tenants was required to be made to both of them and could not be paid to either of the joint tenants or to a third party for their benefit.

In regard to the Bank, it is my view that the money paid to it “for account of W. C. Leuzinger and Leta M. Leuzinger” was a special trust fund and the bank had no authority to deposit it in any existing account that the Leuzingers may have had in that bank without the consent and authorization of both of them. Without such authorization, the bank could only hold the funds until paid to both of said beneficiaries.

I would reverse and remand as to both defendants for a trial on the merits.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Charles W. GARTON, Appellant.
    No. 51288.
    Supreme Court of Missouri, Division No. 1.
    Nov. 8, 1965.
    Motion for Rehearing and to Transfer to Court En Banc Denied Dec. 13, 1965.

      Norman H. Anderson, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
    Charles W. Garton, appellant pro se.
   WELBORN, Commissioner.

A jury in the Andrew County Circuit Court, on April 11, 1962, found Charles W. Garton guilty of first degree robbery by means of a dangerous and deadly weapon. The charge arose out of a robbery of the Farley State Bank on September 1, 1961.

The Second Offender Act (Section 556.-280, RSMo 1959, V.A.M.S.) was found to be applicable and the court sentenced Gar-ton to life imprisonment. On appeal, the judgment of conviction was affirmed by this court. State v. Garton, 371 S.W.2d 283.

On July 11, 1964, Garton filed, pursuant to Supreme Court Rule 27.26, V.A.M.R., a motion to vacate the judgment and sentence against him. On December 8, 1964, the Andrew County Circuit Court overruled the motion without a hearing, the court having concluded that the motions, files and records of the case show that the prisoner is not entitled to relief. An appeal was taken from the order denying relief.

On this appeal, any meritorious contention of appellant must relate to the denial of his motion without a hearing on its factual allegations. Insofar as the greater part of allegations of the appellant’s pro se motion are concerned, the trial court properly found either that they stated no grounds for relief in the proceeding here under review or that they should be determined against the appellant on the basis of the files and records of the trial court.

In the former category are such matters as the refusal of the trial court to grant a continuance at the original trial, allegedly prejudicial remarks of the prosecutor during the trial and the admission of various items of evidence and testimony. The matters referred to are, at the most, matters of trial error, affording no basis for relief in this collateral proceeding. In addition, several of these objections and others here raised were actually presented and determined adversely to appellant on his direct appeal. State v. Garton, supra. Thus the objection, based upon Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, that due process was denied by the trial court’s refusal to compel production of a written statement by the state’s witness, Streater, was considered and determined on the direct appeal. State v. Garton, 371 S.W.2d 289-290.

The contention that application of the Second Offender Act violates the constitutional guarantee of trial by jury (Art. I, § 22(a), Constitution of Missouri, 1945, V.A.M.S.) has heretofore .been determined adversely to appellant’s contention. State v. Wolfe, Mo.Sup., 343 S.W.2d 10, 12. The punishment is within the limit imposed by law. Section 560.135 RSMo 1959, V.A.M.S. Therefore, there is no ground for complaint here that the punishment is excessive, arising out of the trial judge’s erroneous assumption concerning the appellant’s prior criminal record or the effect of the crime for which he was sentenced.

Objections that the trial judge was disqualified to hear the case because he was a depositor in the bank robbed and that the prosecuting attorney was an officer and depositor in the bank and therefore the information filed by him was void afford no basis for relief in the proceeding under review. If such be the facts, and assuming that this would establish such interest as would disqualify the trial judge and the prosecuting attorney, these facts could have become known to the appellant prior to his trial in order to have permitted objection based thereon to have been raised in the proper manner. There is no allegation that these facts were not known to the appellant prior to his trial.

The allegation that the Supreme Court denied his request for the appointment of counsel to represent appellant on his direct appeal states no grounds for relief under Supreme Court Rule 27.26, V.A.M.R. State v. Howard, Mo.Sup., 383 S.W.2d 701, 704 [6, 7]; State v. Schaffer, Mo.Sup., 383 S.W.2d 698, 700 [6-9].

The allegation pertaining to the denial of effective assistance of counsel is rebutted by the transcript of the former trial, a part of the records of the circuit court. The transcript shows that appellant was represented at the trial by counsel of his own choosing who carefully and skillfully represented appellant.

The allegations of appellant’s motion involving factual matters are found in three paragraphs of the motion. In the first, he contends that the prosecuting attorney “willfully, knowingly, and purposely withheld and suppressed evidence favorable to defendant.” According to the motion, one of the robbers who entered the bank was “disguised in a large mustache.” The motion further alleges that prosecuting officials knew that the state witnesses “had seen such a mustache and could so testify;” that such evidence was not known to the defendant or his counsel at the trial, and that the evidence was purposely withheld and deliberately suppressed by prosecuting officials with intent to prejudice the defense. According to the allegation of the motion, evidence “of such a mustache was of vital importance and material to the witnesses claims of positive identification of (appellant); that such evidence was vital to the jury’s decision and if known to the jury such evidence would have resulted in a different verdict; * *

Three employees of the bank did positively identify Garton as one of the two men who entered the bank and participated in the robbery. None of the witnesses mentioned that either of the persons entering the bank was disguised by a mustache, although the witnesses did testify that the robbers wore facial makeup. Assuming that the allegations of the motion are true, the evidence at best would go merely to the credibility of the identifying witnesses. It might tend to cast some doubt upon their ability to identify the persons who entered the bank. However, the transcript of the evidence on the trial of the appellant shows that the witnesses quite definitely identified the appellant on the basis of his facial characteristics in spite of his efforts to disguise himself by means of hair dye and facial makeup. We must reject the appellant’s contention that had the witnesses testified that one of the robbers, supposedly the appellant, was wearing a mustache, it would have so shaken the positive identification by the witnesses that the jury would have rejected their testimony. At the best it would relate only to the credibility of the witnesses and factual matters pertaining thereto do not afford a basis for relief under Supreme Court Rule 27.26, V.A.M.R. State v. Rutledge, Mo.Sup., 317 S.W.2d 365, 367.

The next allegation of factual matter deals with the appellant’s allegations that prospective witnesses on his behalf were harassed in Hobbs, New Mexico, by one Bob Karnes, an agent of the F.B.I., who “did * * * imply” to them that they would be subject to prosecution for perjury if they testified in Missouri to appellant’s alibi. The appellant’s alibi was that he was in Hobbs, New Mexico, on the day of the robbery. One witness, Mickey Owens, did so testify at the trial. The appellant’s motion here specifically refers to this witness as one whom the agent attempted to intimidate. No reference to harassment or intimidation was made by the witness in her testimony at the trial. In any event, there is no allegation that the prosecuting attorney or any other officials of the State of Missouri either solicited the efforts of the F.B.I agent or that the prosecuting officials had any knowledge of the alleged activities of Mr. Karnes. The allegation therefore states no basis for relief. 24 C.J.S. Criminal Law § 1606(15), p. 738.

The last factual allegation of the appellant’s motion is that the prosecuting attorney deliberately made use of perjured testimony at the trial. Three persons were involved in the holdup, Garton, Andrews and one Jack Streater. Streater testified on behalf of the state at the trial of both Andrews and Garton. At the trial of Garton, Streater testified that, on August 25, 1961, the three parties had undertaken to effectuate a plan to rob the bank, but that Andrews and Garton who went into town for such purpose determined that the robbery should not be undertaken at that time because there were too many people around. In his motion the appellant alleges that Streater “was working at his regular job at a bakery that whole day in Kansas City, Mo., on August 25, 1961, and could not possibly have joined such a conspiracy or attempt to rob said bank on that date. That the prosecuting attorney knew these facts, and did therefore, knowingly use perjured testimony concerning the above stated vital and material issues.”

“In a very recent case, State v. Worley, Mo., 383 S.W.2d 529, at loc. cit. 531, we said: ‘As stated in the case of State v. Statler, Mo., 383 S.W.2d 534, * * * 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 he essential factual allegations, as distinguished from conclusions or speculation.” (Emphasis supplied.) State v. Donnell, Mo.Sup., 387 S.W.2d 508, 512 [8].

“When a claim is made that the prosecution colluded with witnesses to commit perjury, or had knowledge that they had done so, the person making such claim has the burden ‘to allege and prove, not conclusions, but facts which would entitle him to relief’. Smith v. United States, 5 Cir., 252 F.2d 369, 371; certiorari denied 357 U.S. 939, 78 S.Ct. 1388, 2 L.Ed.2d 1552.” United States v. Brilliant, U.S.D.C., E.D., New York, 172 F.Supp. 712, 713.

Here the only essential factual allegation found in the motion is that Streater was working all day at his regular employment at a bakery in Kansas City on August 25, 1961. The statement that for such reason Streater “could not possibly have joined such a conspiracy or attempt to rob said bank on that date” is an obvious conclusion based upon the fact stated regarding Streater’s working. However, the conclusion which appellant draws does not necessarily follow from the factual allegation of his motion. The trial court in examining the motion would know judicially the proximity of Farley to Kansas City and that the fact that one might have worked at a job the whole day in Kansas City would not have made it impossible for that person to have been in the vicinity of Farley on the same date. There is no factual allegation regarding the prosecuting attorney’s connection with the alleged perjury other than the statement that the prosecuting attorney “knew these facts, and did therefore, knowingly use perjured testimony.” There is no evidentiary basis shown for the conclusion that the prosecuting attorney knew the only fact alleged, i. e., that Streater was working in Kansas City on the day in question and, again, the mere fact that the prosecuting attorney might have known that fact would not necessarily show that the use of Streater’s testimony involved the knowing use of perjured testimony.

We recognize that in a proceeding such as this the motion for review, as in this case, is frequently prepared by the convict himself, without the benefit of legal assistance, and, therefore, strict compliance with the rules of pleading is not required. Nevertheless, the facility with which conclusions may be stated as the basis for relief in a case such as this and the obvious lack of restraint upon reckless allegation to such effect demonstrate the necessity for the requirement that the “application must set out the evidence by which the existing facts can be proved, and the source thereof, and must show a probability of truth.” 24 C.J.S. Criminal Law § 1606(28), p. 787. The petitioner in State v. Eaton, Mo.Sup., 280 S.W.2d 63, relied upon by the appellant here, did set out in complete detail the factual basis for his contention that the prosecution had not only used perjured testimony against him but had willfully suppressed testimony favorable to the petitioner. The allegation was held sufficient to call for a hearing. (At the hearing which was subsequently held the petitioner was unable to substantiate his allegations. State v. Eaton, Mo.Sup., 302 S.W.2d 866.)

Allegations regarding the knowing use of perjured testimony in Streater’s statement that he was not promised leniency in return for testifying on behalf of the state are of the same nature as the statements above discussed. In our opinion the appellant here has not stated sufficient facts to justify a hearing on his allegation regarding the use of perjured testimony. Therefore, the trial court did not err in passing upon the motion without a hearing. State v. Donnell, supra.

The judgment is affirmed.

HOUSER, C., concurs.

HIGGINS, C., not participating.

PER CURIAM:

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

All of the Judges concur.


author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Nathaniel HARRIS, Appellant.
    No. 51181.
    Supreme Court of Missouri, Division No. 2.
    Nov. 8, 1965.
    Motion for Rehearing or to Transfer to Court En Bane Denied Dec. 13, 1965.

      Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    James A. Bell, St. Louis, for appellant.
   FINCH, Judge.

This is an appeal from a conviction of defendant, with added charges under the Habitual Criminal Act, for receiving money, without consideration, from the proceeds of the earnings of a woman engaged in prostitution in violation of § 563.040. (Unless otherwise indicated, all statutory references are to RSMo 1959, V.A.M.S.) The trial court found that appellant had been convicted of eight prior felonies on which he had been incarcerated and subsequently released. Punishment was fixed at ten years’ imprisonment.

Appellant was represented from the time of arraignment throughout all proceedings in the trial court by counsel of his own selection. This included the filing and presentation of a motion for new trial and approval of the transcript on appeal. Apparently appellant elected not to file a brief in this court but we will consider all matters properly raised in appellant’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.

The State’s evidence will support the following statement of facts: Sharon Marie Anderson, age 17, went on February 13, 1964, to the Greyhound Bus Station in St. Louis for the purpose of taking a bus to Doniphan, Missouri, to stay with her grandmother. Sharon had been in the Training School for Girls at Chillicothe on two occasions and had been in and out of institutions since she was 14. The proposed trip was occasioned by the fact that her stepmother asked her to leave their home in St. Louis and her brother and cousin brought her to the bus station to wait for her bus. While at the bus station she talked to the appellant, a cab driver, and he invited her to go somewhere with him, to whieh she agreed. Appellant rented a hotel room where Sharon stayed that night. The next day appellant took Sharon to the apartment of a Katherine Parrish. Appellant talked to Parrish and then told Sharon they had a job for her. They discussed the details which included the fact that Sharon was to turn over to appellant the money she earned. Appellant told Sharon he would have a place for her to stay, would buy food and would give her clothes. After that Parrish took Sharon to an apartment at 5899 Clemens where she engaged in acts of intercourse for money with various men until February 26, 1964, when she and Katherine Parrish were arrested. During that period of time Sharon had earned about $150.00. She kept about $5.00 for herself and gave one-half of the rest to appellant and the other half to Parrish.

No evidence was offered by appellant.

The first point raised in appellant’s motion for new trial is that the credibility of the State’s witness was such that no weight should have been given to her testimony, a prima facie case was not made and there should have been a judgment of acquittal at the close of the State’s case.

The principal witness against appellant was Sharon Marie Anderson. Her testimony was not contradicted by anyone. Presumably the assignment in the motion for new trial has reference to the fact that Sharon admitted that she had told appellant that she was nineteen when in fact she was seventeen and to the fact that when first taken into custody on February 26, 1964, she told the detective that her name was Sherrie Blankenship. This, she said, was at the suggestion of Parrish.

The court instructed the jury on the credibility of witnesses and the jury had the function of judging the credibility of Sharon in the light of the fact that she admittedly had lied on those two occasions. These falsehoods were not as to material matters with reference to the offense charged and did not destroy the substantiality of "her testimony. State v. Thursby, Mo., 245 S.W.2d 859, 862. Likewise, the fact that Sharon was engaged in prostitution and had been in the Training School for Girls did not prevent her evidence from being substantial. State v. Armstead, Mo., 283 S.W.2d 577, 579. Her credibility was for the jury. There was ample evidence, if believed, to establish guilt of the defendant.

The next several assignments in appellant’s motion for new trial attack the failure of the court’s instructions to define the term “consideration” used in Instruction No. 1.

The statute under which defendant was prosecuted, § 563.040, provides as follows:

“That any person who shall knowingly accept, receive, levy or appropriate any money or other valuable thing, without consideration, from the proceeds of the earnings of any woman engaged in prostitution, shall be deemed guilty of a felony * *

Instruction No. 1 submitted to the jury the question of whether defendant accepted or received “without any consideration therefor” any part of the earnings of Sharon Marie Anderson from prostitution, but did not define the term “consideration.” Defendant tendered Instruction No. A which defined “consideration” but it was refused by the court. It was as follows:

“Consideration, as used in these instructions, means that the prosecuting witness, Sharon Marie Anderson, did not receive anything of value in exchange for money she allegedly gave defendant, and if you find that she did receive from defendant something of value, in exchange for the money she gave defendant, if you so find that she did give defendant money earned from prostitution, then you will find the defendant not guilty.”

Under the concept of consideration as defined in refused Instruction No. A, if appellant gave anything of value to Sharon in return for all or part of her earnings from prostitution, he could not be convicted for he would not have received such sums without consideration. Anything of value would include clothing given by appellant, or food provided, or even the bed furnished on which the acts of prostitution were performed. This concept includes services as well as things and would include acts of one in bringing men to her for the purpose of engaging her services. Was this the concept of consideration meant and intended by the Legislature in what is now § 563.040 when it used the words “without consideration?” We think not.

Section 563.040 was Section 3 of a statute enacted in 1913. See Laws Missouri 1913, p. 219. The section is almost identical with a statute enacted in New York in 1910 except that the Missouri Act did not make such acceptance of the money or thing presumptive evidence of lack of consideration, as did the New York statute. See N.Y. Penal Law, § 2460, Consol.Laws, c. 40, par. 8, as added by Laws 1910, c. 618. In discussing this statute in People v. Fegelli, 163 App.Div. 576, 148 N.Y.S. 979, the New York court remarked that a report concerning prostitution in New York City had pointed out that a practice of taking a percentage of the earnings of women engaged in prostitution was a leading cause of the growth of the evil in question. It was observed that this and other similar information was before the New York Legislature when it adopted the Act in 1910. That, no doubt, was a factor in the fixing of rather heavy penalties for the offense. We do not know whether the Missouri statute was taken from the New York Act but the similarity of language is striking. In addition, the very title of the 1913 Act in Missouri indicates a purpose of punishing persons who either sought to place or keep women in the business of prostitution, and this included persons knowingly participating in the proceeds thereof. Certainly the Legislature did not intend by the terms of § 563.040 to exonerate those who agree with a woman to furnish her with the means to conduct her trade, namely, bed, board or clothing, in return for her agreement to turn over her earnings received from prostitution. An interpretation that it did so intend would excuse the bawdy house operator, the madam, and even the pimp or procurer, all persons at whom the statute obviously was directed. It would excuse appellant who took Sharon to one who operated a bawdy house and arranged with her to put Sharon to work, with bed, board and clothing furnished, in return for which, and as a part of the agreement placing Sharon in commercialized prostitution, appellant was to receive one-half of her earnings, with the other half thereof going to the madam. We conclude the Legislature did not so intend.

We are of the opinion that the term “without consideration” has reference to instances in which the consideration is not incidental to unlawful conduct which places the woman in prostitution or continues her therein. For example, if a known prostitute went into a store and made a purchase, or went to a physician and received medical attention (paying the storekeeper or physician with money obtained by engaging in prostitution), the goods or services would constitute consideration for the amount paid by the prostitute. The storekeeper or physician would not be guilty of accepting or receiving, without consideration, earnings of a woman received from prostitution, even though he knew of the woman’s trade and the source of her earnings. This hypothetical situation differs from one in which the articles or services are furnished in return for all or a percentage of the woman’s earnings from prostitution. The latter is an agreement which places her in or continues her in unlawful activity and has the effect of encouraging prostitution. In such a situation the amount to be received for the goods or services furnished to her has no relation to the value thereof but rather is dependent upon and geared to the industry and vigor with which she plies her trade. There are cases in which the defendant has furnished a room or board or has brought men to a woman engaged in prostitution and in return has received all or a percentage of the amounts received by the woman. In those instances convictions under the statute here involved were upheld. See State v. Howe, 287 Mo. 1, 228 S.W. 477; State v. Johnson, 350 Mo. 928, 169 S.W.2d 339; State v. Thursby, Mo., 245 S.W.2d 859; and State v. Armstead, Mo., 283 S.W.2d 577.

It follows that the trial court did not err in refusing to give appellant’s verdict-directing Instruction No. A.

In this case there was no evidence whatsoever that appellant furnished a lawful consideration to Sharon. Any further definition in accordance with the views expressed herein would have been harmful and not beneficial to the appellant herein, and he could not possibly have been prejudiced by a failure to further define a lawful consideration. Hence we do not reach for decision and do not decide the propriety of an instruction further defining a lawful consideration in a case where the record might provide a basis therefor.

Finally, the motion for new trial complains of argument of counsel to the jury. An examination of the transcript discloses only one objection by counsel for appellant to argument by the Circuit Attorney. The court promptly sustained an objection to that argument and directed the jury to disregard it. No further action was requested and hence nothing for review is preserved.

We have examined all those matters on the record before us pursuant to Supreme Court Rule 28.02, V.A.M.R., and find no error.

The judgment is affirmed.

All of the Judges concur.

      . It has been held in a civil case involving a statute relating to negotiable instruments that the term consideration as used in the statute meant a lawful consideration. See Gershon v. Ashkanazie, 239 Mo.App. 1012, 199 S.W.2d 38. This holding is consistent with the interpretation we make herein of the term as used in the statute under which appellant was prosecuted.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Wesley MORELAND, Appellant.
    No. 51333.
    Supreme Court of Missouri, Division No. 2.
    Nov. 8, 1965.
    Motion for Rehearing or to Transfer to Court Bn Banc Denied Dec. 13, 1965.

      Norman H. Anderson, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.
    Jay White. Rolla, for appellant.
   EAGER, Presiding Judge.

This appeal is from an order denying a motion to vacate a judgment and sentence, filed under Rule 27.26, V.A.M.R. A prior appeal from an order denying the same motion was disposed of here by an opinion appearing at 351 S.W.2d 33. There we held that the motion raised questions of fact on which the petitioner was entitled to a hearing, and we reversed the judgment and remanded the case. Such a hearing has now been held, with the petitioner present and testifying, the trial court has made findings of fact as required by the Rule, and the motion has again been denied. We consider the matter de novo, Rule 28.05, but give deference to the findings of the trial court in so far as they involve the credibility of witnesses. Rule 73.01(d). We shall refer to the petitioner as the defendant.

Most of the necessary facts appear in our prior opinion, but for convenience we relate the essential background facts here. We have now a more complete record, for the entire Circuit Court file was offered and received in evidence at the hearing on the motion. On January 1, 1929, defendant was arrested upon complaint of one Dora Shinkle on a charge of forcible rape. A preliminary hearing was held on January 5, 1929, defendant was bound over to the Circuit Court, and he was remanded to jail in default of bond. Numerous witnesses were subpoenaed for the preliminary hearing and fourteen witnesses thereafter signed an appearance bond for their appearance in the Circuit Court at the January 1929 term. An information charging defendant with forcible rape was filed in the Circuit Court on January 28, 1929. The records of the Circuit Court, as more particularly set out in our prior opinion, show that defendant appeared in court on January 28, 1929, in custody of the sheriff, entered a plea of guilty and, after allocution, was sentenced to life imprisonment.

On January 28,1947, defendant filed a petition for habeas corpus in the Circuit Court of Cole County. We shall refer to this and the ruling thereon later, as these facts now appear in certified form in the files of the Maries County Circuit Court which were made a part of the hearing reeord. The writ was denied after a hearing on February 15, 1947. On October 21, 1959, defendant filed in the Circuit Court of Maries County a motion to vacate the judgment and sentence. Generally, both the petition and motion just referred to asserted the same grounds for relief as does the present motion, but with some differences and amplifications not now present. That motion to vacate was denied without a hearing, and no appeal was taken.

The grounds of the present motion filed on December 8, 1960, are well digested in our prior opinion. There we said: “The substance of those allegations is that (1) appellant had no counsel when he pleaded guilty, (2) the circuit court made no inquiry as to whether he had counsel or could obtain counsel to advise and assist him or whether he was ‘intelligently able to knowingly waive such right/ and (3) the prosecuting attorney and the circuit court knew that he ‘was an uneducated person having no experience with or knowledge of the law and having only the equivalent of a second grade elementary education.’ ” The real issue here now is whether defendant intelligently and voluntarily waived his right to counsel at the time of his plea. Defendant has made a casual allegation of “the duress of dire threats and false promises,” which he has made no effort to sustain by evidence; he also alleged that he was arraigned without any preliminary examination which allegation is proven totally untrue by the files. On the prior appeal we concluded our opinion as follows: “We do not purport to imply what the true facts are as to appellant’s allegations in his motion, or to infer what should be the ‘findings of fact and conclusions of law with respect thereto.’ However, appellant. is entitled to a hearing on his motion in which he is afforded the opportunity to establish the facts as alleged in his motion, and it was error for the trial court to overrule the motion without the hearing contemplated and required under the circumstances by Supreme Court Rule 27.26.”

We now consider the record of the hearing held pursuant to our mandate. Defendant was represented by counsel at that hearing, and the same counsel has briefed and argued this appeal.

Defendant testified in substance as now related. He was born in 1888, and was “around 40” at the time of these events; he had been and was engaged in farm work; he had gone to the second grade in school, but had learned to read and write after leaving school; he was, at the time of the hearing, too nervous to write; he had known the complainant all his life and formerly worked for her; he was arrested and placed in jail where he remained for nearly a month before his arraignment; he first said that he did not remember what happened on the day he entered his plea and that this was the first time he was ever in the courthouse, but he then proceeded to detail the occurrences; on direct examination he testified that the Judge said that he was charged with rape, and that the prosecuting attorney asked him how he pleaded; that he entered a plea of guilty by nodding his head (his evidence was somewhat incomplete at that point, but it was apparently cleared up later), and the Judge said: “I give you life”; that he started out the door with the sheriff and the Judge told him to wait, saying: “Have you a lawyer ?”; that he answered that he did not, and the Judge said: “The court could * * * [later related as “could give you one”] but “he didn’t say he would,” and, finally, the Judge said: “Take him on out” ; that he never told the Judge that he did not want a lawyer, and that he had no money to hire one; that he had his dinner and was taken to the penitentiary that evening. Defendant also testified that the prosecutor had previously told his father, mother, uncle and aunt that if he would plead guilty “he’d give me five years * * * ” ; but I said “Well, I ain’t guilty * * * ”; that “they,” meaning his immediate family, “told me to plead guilty” ; that it was his understanding at the time of the plea that he would get five years, but he did not know whether the Judge had been consulted; that no one informed him of the limits of punishment for this charge.

On cross-examination (and redirect) the defendant testified: that his uncle Dave James owned a large farm, and was present in court at the time of his sentence, but he made no statement concerning his supposed agreement with the prosecutor; that he, defendant, did not ask to talk to an attorney, and that the Judge never told him that he did not need one; that the Judge said that he “could appoint me a lawyer but he never said he would”; that he did not ask defendant if he wanted a lawyer; that he did not know if lawyers were present in the courtroom; that, so far as he knew the sheriff never refused to let anyone see him in the jail, but nobody came to see him there; that he should have had a lawyer.

The testimony of defendant as to whether or not he told his fellow prisoner(s) what to incorporate into the present motion, is very conflicting; at some places he said “It’s their idea,” that he never told “him” what to “write,” and that he “never told nobody to write it”; at another place it was indicated that he did tell his helper or helpers what had “happened here” and “give him ten dollars.” Actually, this is not material, for the motion was filed and it is here for our action. The background does, perhaps, shed some light upon some of the rather extravagant allegations. Defendant’s testimony regarding the holding of a preliminary hearing was also contradictory in and of itself. Defendant did miscalculate his age, stating that he would be seventy-two within a few days, although he was born in 1888. He had been paroled “a couple of years ago,” but for a “very short time.”

Judge Henry J. Westhues, Judge of that Circuit at the time of the sentence, testified at some length. He stated that he “remembered the occasion very well.” We deem it advisable to quote material portions of his testimony as follows: “Q I’ll ask you, Judge, if — whether or not at that time that you informed the defendant of his rights? A Most certainly did, because he was brought into Court and Leslie Hutchison read the Information to him and asked him how he pleaded, and he says, ‘Well, I want to plead guilty.’ I said, ‘Just wait a minute,’ I said, ‘Now, you have a right to be represented by a lawyer, and have you one?’ And he says, ‘No, sir.’ ‘Have you talked to your friends about this?’ He says, ‘No, sir.’ I said, ‘Well, what are the circumstances of this crime?’ So Leslie Hutch-ison, quite in detail, told me about it, before the defendant, how this crime was committed and how the woman suffered, terrible ordeal she went through. And I said, ‘Well, have you any recommendation to make?’ He said, T recommend thirty-five years.’ I turned to the defendant there, Mr. More-land. I said, ‘Has the Prosecuting Attorney stated the facts in this case?’ He says, ‘Just — just about.’ I said, ‘Well, have you anything to add?’ He says, ‘No, sir.’ I said to him right then and there, T cannot follow the recommendation of the Prosecuting Attorney and I’m not going to accept your plea of guilty today. You talk to your friend or get a lawyer to defend you, and I’m not going to give you that amount of punishment; and your punishment will either be life or death, and you think it over till tomorrow,’ and had the Sheriff take him out.

“Next day he came back and I asked him if he thought it over, and he said, ‘Yes.’ I said, ‘Well, have you talked to a lawyer? He says, ‘No.’ I says, ‘You want one?’ ‘No, sir.’ ‘Talked to your friends?’ He said, ‘No, sir, no use talking to my friends.’ Said, ‘Well, what’s your plea?’ He said, ‘Well, I enter a plea of guilty.’ And I told him at that time that if I thought he was ever gonna apply for a parole I’d give him the death penalty, but in view of the fact that he was pleading guilty I was going to give him life imprisonment, and I wrote the penitentiary officials that I was protesting a parole for him at any time.” The witness testified also: that the crime, as related, was very brutal, and that defendant’s “only excuse” was that he thought he had been drinking; that he certainly did not tell the defendant that he could not have counsel, and that he had many times appointed counsel for indigent defendants; that he did not inquire about defendant’s education but that he appeared to be “a very intelligent individual”; that he answered the Judge’s questions freely and seemed “to know what he was doing”; that in his experience a farmer is not necessarily ignorant. A. B. Massey, who was Sheriff of Maries County at the time, testified: that he recalled defendant and the occurrences; that he never refused anyone the right to visit defendant while he was in jail, nor had he refused visitors to anyone while he was Sheriff.

Following the hearing, the Circuit Court made and entered its order as follows: “Applicant James Wesley Moreland appears in person and with his áttorney, Jay White. Prosecuting Attorney appears. Both sides announce ready for hearing. Hearing proceeds and evidence offered by applicant and by Prosecuting Attorney heard.

“It is found from the evidence that on the day and date applicant appeared in this court to answer on the charge of rape then pending against him, this court had jurisdiction of the person of the applicant and of the cause. It is further found that on the day and date the defendant, now the applicant, entered his plea of guilty to the charge pending against him, that is, rape, he did so voluntarily. It is found that defendant on the date he entered his plea of guilty and was thereupon sentenced to imprisonment in the State Penitentiary for and during his natural life and on which sentence and judgment he has since been confined, and is now confined in the penitentiary, he was not represented by counsel, but this court finds from the evidence in this hearing that defendant intelligently waived counsel after explanation to him by the sentencing Judge of his right to have counsel. It is found from the evidence that at the time of defendant’s plea of guilty he was mentally competent and able to understand the nature of the proceedings, and that the penalty that would be imposed upon his plea of guilty was fully explained by the court and defendant given time until the following day to consider his need for counsel and to consider entering a plea of not guilty, and that following the expiration of time given him for such considerations, he voluntarily and intelligently waived counsel and entered his plea of guilty upon which plea sentence was imposed. It is found as a matter of law that the sentence so imposed was within the statutory range of punishment for crime to which defendant pleaded guilty. Application to vacate and set aside judgment and sentence denied.”

It seems obvious that the court gave full credence to the testimony of Judge Westhues; this is not surprising, inasmuch as his most excellent reputation is known throughout the state. It should also be noted that the defendant, to some slight extent as least, though rather grudgingly, corroborated the testimony of Judge West-hues. After a hearing, we do not assume that any of the allegations of the motion are true. They must be proven, and the burden of proof is on the defendant. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167; Quicksall v. People of State of Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188; State v. McDonald, Mo., 343 S.W.2d 68. Before proceeding further, we note from the prior petition for habeas corpus the sworn statements of defendant to the effect that the members of his immediate family had consulted with the prosecutor about the possible sentence two days before his arraignment and that they had “relayed” the information to him that he would get a “light” sentence upon a plea of guilty. It thus appears from defendant’s own sworn statements that he had consulted with the members of his family prior to his arraignment. We note also from the testimony of Judge Westhues to which we, like the trial court, afford full credibility, that all ideas of a “light” sentence were expressly dispelled by the court prior to the actual acceptance of defendant’s plea; therein the court told defendant that it would not accept the recommendation of thirty-five years but would impose a life sentence or ths death penalty, but gave defendant time until the next day to think the matter over. In view of the positive testimony of Judge Westhues regarding the delay, we do not regard as persuasive the fact that the formal record of the plea, judgment and sentence was entered as of January 28, 1929.

Our courts have universally held that a defendant charged with a serious crime has the right to the assistance of counsel and that, if he is unable to employ one, the court should appoint counsel; this right, of course, extends to the time of his arraignment and plea, as well as to the trial. But the right to counsel may be waived, if the waiver is voluntarily and intelligently made. State v. McDonald, Mo., 343 S.W.2d 68, 71; State v. Glenn, Mo., 317 S.W.2d 403. In Glenn we also held that the burden is upon the defendant to prove any alleged incompetency to waive. See, also, generally: State v. Kitchin, Mo., 300 S.W.2d 420; State v. Shell, Mo., 299 S.W.2d 465; certiorari denied Shell v. State, 353 U.S. 967, 77 S.Ct. 1052, 1 L.Ed.2d 916, certiorari denied 356 U.S. 939, 78 S.Ct. 782, 2 L.Ed.2d 814. The latter two cases further hold, as we shall note later, that when a defendant has once had a hearing and findings have been made adjudicating a fact issue in one collateral attack, the determination is conclusive of that issue in all subsequent attacks.

In many federal cases the courts have enforced the rights of defendants to the assistance of counsel as a fundamental right guaranteed by the due process clause. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126; Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167; Carter v. People of State of Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172. But in none of these, so far as we have found, have the courts ever denied the effectiveness of a waiver of the right to counsel, voluntarily and intelligently made. In several of such cases supposed waivers were held ineffective because of such circumstances as possible mental impairment, threats or implications of possible mob violence, or coercion of any sort, where any such element or elements appeared to have materially influenced the plea of guilty.

In the present case there is no claim of threats, intimidation or coercion. The arraignment took place twenty-eight days after the arrest. The defendant had admittedly consulted with members of his immediate family, even if (as he says) only two days prior to the arraignment. There can be no denial now of his assertion, since it appears that in this period of over thirty-six years the interested persons have died. Much water has gone over the dam since 1929.

While we have not followed specifically the points of appellant’s brief, we consider that our discussions and rulings have answered them. They were, in substance: that the right to counsel at every stage is a fundamental right under the due process guarantee, and that a conviction is invalidated thereby if counsel is not assigned whether requested or not, when the accused is so poor, uneducated and inexperienced as to be incompetent to determine his need.

We adopt as our own the findings of the trial court, after a full consideration of all the files and of the transcript of the hearing. This necessarily results in an affirmance of the judgment of the trial court. In conclusion, however, we note that the same result might have been arrived at under the doctrine of res adjudicata, by reason of the finding of the Circuit Court of Cole County adverse to this defendant in the habeas corpus proceeding. The allegations made there contained the substance of those here, namely, the failure to protect petitioner’s constitutional right to counsel. It is shown in our present transcript that Judge Westhues testified there; we may assume that the defendant did also and that the fact issues determined included the fact issue before us in this proceeding. The court remanded the defendant to the custody of the Warden, thus deciding the issue mentioned, and all others, against him. Such a factual determination, after hearing, is conclusive of the issues so adjudicated. State v. Kitchin, Mo., 300 S.W.2d 420; State v. Shell, Mo., 299 S.W.2d 465. However, since we do not have the full record of the habeas corpus proceedings before us, including a transcript of the evidence, we prefer not to rule the present appeal upon the theory of res adjudicata. We have made our findings and rest the decision upon them.

The judgment is affirmed.

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. John KENNEDY, Appellant.
    No. 51094.
    Supreme Court of Missouri, Division No. 2.
    Nov. 8, 1965.
    Motion for Rehearing or to Transfer to Court Bn Banc Denied Dec. 13, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Dennis D. Quillen, Special Asst. Atty. Gen., Clayton, for respondent.
    Forrest Boecker, St. Louis, for appellant.
   BARRETT, Commissioner.

A jury found the appellant Kennedy guilty of burglary in the second degree and stealing property of the value of “at least” $50.00 and fixed his punishment at two years’ imprisonment for each offense (Section 560.095(2) RSMo 1959, V.A.M.S.), “for an aggregate of four years,” with the consequence that the sentences are successive, not concurrent. Section 560.110 (2) RSMo 1959, V.A.M.S.

The information appropriately charged that on July 16, 1963, Kennedy, in Warren County, “feloniously, and burglariously (did) break into and enter a certain building in which there was at the time no human being, * * * the property of Jim Laflin, an individual, and being a building in which diverse household furnishing and other valuables were then and there kept * * * and did then and there fe-loniously and burglariously steal, take and carry away the following, to wit: One Sears Dehumidifier, one G. E. table radio, one Motorola T.V., one 20 x 50 Binoculars, one gun lamp, one 22 Remington pump gun, two electric heaters, one 5th of Southern Comfort, one 5th of gin, one 5th of scotch, one 5th of bourbon, one G. E. electric clock, one G. E. electric automatic toaster, and one G. E. automatic coffee pot, having a total of $380.00, and being the personal property of Jim Laflin, an individual * * Sections 560.045,560.156-560.161 RSMo 1959, V.A.M.S. State v. Zammar, Mo., 305 S.W.2d 441.

The proof was that Mr. Laflin of St. Louis County owned a seven-room lodge on his three-hundred acre ranch in Warren County. The Laflins spent the weekend of July 13-14, 1963, at the lodge, leaving in the evening of the 14th after checking and locking the doors and windows. On July 16, in response to a telephone call Mr. Laflin returned to the lodge and found the doors to both the guesthouse and the lodge ajar and the lights on in the basement, “the door to the guesthouse was split, and there was a footprint on the door; the door to the lodge itself and the lock jammed, and the catch that holds the lock was pushed free and the wood behind the door jam was pushed out and broken and split.” The fourteen or so items listed in the information were found to be missing from the lodge. On July 23 Mr. Laflin, with the Sheriff of Warren County who had a warrant for his arrest, went with two City of St. Louis police officers to Kennedy’s home at 821 Academy. After knocking on the door Kennedy identified himself, the sheriff read the warrant to him and placed him under arrest. One of the officers said they “would like to look for certain articles,” Kennedy replied, “Go ahead and look.” The sheriff said, “We found a .22 rifle in a pantry; we found a part of a bottle of liquor, gin, on the television set in his living room; he had a radio, a G. E. radio, and also a G. E. clock.” Mr. Laflin, identifying certain articles, said, “this is the General Electric radio, table model radio, which was taken from the Lodge and which John Kennedy went into the back bedroom of his home and gave to me on the 23rd, when we were there at his house.” Likewise he said of the electric clock, “it is the clock (value $10.00) which John Kennedy gave to us.” The gin Mr. Laflin identified because it was an unusual, imported brand, “Tanquer,” expensive, $6.50 a fifth. Also he testified, “this gun was in the pantry on the shelf clear behind the pans, in the kitchen of John Kennedy’s home,” and its value was $40.00. In conclusion, in describing the trip to Kennedy’s home, Mr. Laflin said of Kennedy, “what happened, each item I asked for specifically, he gave me, but he volunteered no items that we did not ask for.” The court sustained an objection to an answer “Yes, sir; he knew where they came from,” but permitted the answer “He told me, Sir,” and the question and answer: “Did he tell you? A. Yes, Sir.”

It will be noted that there is no direct proof that Kennedy actually broke open the doors or burglarized the Laflin lodge, neither in one sense is there any direct proof that he stole the property found in his residence. Nevertheless the appellant does not challenge the rule that both the burglary and the larceny (here stealing) may be found from his recent, unexplained possession of the property, provided the character and circumstances of the possession meet the tests. 12 C.J.S. Burglary § 59, p. 735; 13 Am.Jur.2d §§ 53-54, pp. 354— 355; State v. Warford, 106 Mo. 55, 16 S.W. 886. The appellant’s contention is that certain facts in this record make the unfavorable inferences from possession “untenable” and that therefore he was entitled to a directed verdict of acquittal as to both charges. Virtually the same contention is made in his complaints that there was a variance in pleading, opening statement and proof as to identity of the articles stolen, their value and ownership. And in this connection it is said that the court erred in giving Instructions 2 and 4 because “there was a fatal variance between the evidence of the ownership of this stolen property and that hypothesized in each instruction.”

The latter argument has to do with the fact that in the beginning Mr. Laflin testified as if the radio, valued at forty to fifty dollars, belonged to him personally. The fact was that he purchased the radio and gave it to his wife even though it was a part of the lodge household property. It is said that on this record there was a fatal variance in the information, proof and Instruction 4, all of which included this item in its hypothesis. It is urged therefore that the case falls within State v. Wright, 339 Mo. 41, 95 S.W.2d 1159, in which the indictment charged that the “appellant had burglarized the home of one R. Winfield Scott” when the proof was the house belonged to Roma Scott. It was held that “the name of the owner of the property and the owner of the home burglarized was essential, because the name of the owner was the only description in the indictment identifying the property. It was therefore very material, and a variance therein, between the charge and proof, would have been fatal.” But in this case there is no question as to the ownership of the property burglarized, the lodge, and while the radio was listed in the information and instruction there were other items, the gun, the gin, and the clock and the value of these items totals $56.50, a sum in excess of that specified in the stealing statute and they unquestionably were the property of James Laflin. Thus the case is unlike State v. English, 67 Mo. 136, in which there was held to be a fatal variance in a larceny of money when the charge was “the property of John Peter Sinish” and the instruction authorized a conviction upon a finding of “the property of Peter Sinish.” And of course the case is unlike State v. Roswell, 153 Mo.App. 338, 133 S.W. 99, in which “the proof offered is insufficient to show it was his property or that of any one else.”

But this is only one phase of the appellant’s argument, his principal claim of failure of proof and of variance is that “of the fourteen items charged in the information” only four of the items were found in his residence and therefore it is said that possession of this “trifling and inconsequential part thereof” (State v. Belcher, 136 Mo. 135, 138, 37 S.W. 800, 801) repels any possible inference of guilt of either the burglary or the larceny. In this connection it is said that the “lapse of a week’s time and the interval of sixty miles” is an additional factor repelling any unfavorable inference. Then too it is said that another (the appellant’s brother) had confessed the burglary without implicating the appellant and therefore there was an explanation. State v. Duncan, 330 Mo. 656, 50 S.W.2d 1021.

The weakness of the appellant’s argument is that it ignores the theory and basic tests of the rule of recent possession, unexplained, of stolen property or property stolen in a burglary. The tests and rules are set forth in State v. Denison, 352 Mo. 572, 178 S.W.2d 449, a larceny case, since the appellant was acquitted of the burglary charge. “Recent possession” is to be determined from the facts of each case, there is no definite rule: “‘[i]t varies under the facts in the particular case from two years to a period of a few days,’ ” and there possession of an adding machine and a typewriter two months after the larceny was not too remote. Likewise “possession,” upon this record, was shown because, in the language of State v. Denison, “he was in actual, conscious possession of both.” And it is pointed out in that case “unexplained” does not mean that if the appellant “presents an explanation” the unfavorable inferences are repelled; “the credibility of the explanation is a question of fact for the jury; and if the jury disbelieves it the case stands with his possession unexplained.” Furthermore in that case in addition to a typewriter and adding machine there was also stolen $100. worth of carpenters’ tools, ten dozen paint brushes and numerous other items and the appellant claimed that this presented “conflicting inferences” and, in effect, repelled application of the rule. But the court said, “He is not charged with stealing any property except that traced to his possession.” See also State v. Oliver, 355 Mo. 173, 195 S.W.2d 484.

Two other matters relate to and could possibly affect the conviction as to both the burglary and the larceny and the first of these has to do with the claim that in the prosecuting attorney’s argument there was an “improper comment on the appellant’s failure to testify,” (Section 546.-270 RSMo 1959, V.A.M.S.; Criminal Rule 26.08, V.A.M.R.) and which the appellant also asserts was “a violation of his constitutional right against self-incrimination.” Const.Mo., Art. I, § 19, V.A.M.S. The statute implements and gives meaning to the constitutional provision but they do not always involve the same problems. And in no event could this or any other case in Missouri involve the same problems presented in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, because in California, among other distinguishing factors, the trial court specifically instructed the jury that “if he does not testify * * * the jury may take that failure into consideration * * as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.” As to whether the language violates the prohibition of the statute there is no need to collect and match cases, that has all been done repeatedly. “The key words of the statute * * * are ‘accused’ and ‘testify,’ and the ultimate test of whether the prohibition has been violated is whether the jury’s attention was called to the fact that the accused did not testify.” State v. Hayzlett, Mo., 265 S.W.2d 321. The language complained of was in the state’s opening argument; “Mr. Laflin testified that he did not at any time give that property to anyone and that no one other than Mr. Laflin and his family had any interest in the personal property or in the lodge. Now, on July 23, 1963, that property was in the home of John Kennedy. There has been no explanation as to how that property got there.” No precisely similar statement has been cited or found but it is not comparable to “ ‘I don’t know what this boy says. There is no evidence of any type by him in this case * * *.’ ” State v. Lindner, Mo., 282 S.W.2d 547, 550. Rather the language is somewhat comparable to the statements (all of which were held not to constitute references to the defendant’s failure to testify) “ ‘On one side is the State’s evidence, not contradicted. And what is on the defense side? It is empty.’ ” (State v. Hite, Mo., 298 S.W.2d 411), “The defendant knows about things you don’t know about. It wasn’t our fault. He had as full an opportunity as we did to produce evidence” (State v. Romprey, Mo., 339 S.W.2d 746, 755), “the only evidence produced was the State’s evidence” (State v. Perkins, Mo., 382 S.W.2d 701) or with other language “ ‘because they stand here stripped of all defenses, they have offered no defense to you.’ ” State v. Varner, Mo., 329 S.W.2d 623, 633.

The second matter relating to both offenses, that the court failed “to instruct that appellant might be acquitted of either charge, even though he were convicted of the other” (State v. Qualls, Mo., 383 S. W.2d 547, 550) is not borne out by the record. In the first place, the only form of verdict in the transcript is the one returned by the jury finding the appellant guilty of both offenses and fixing the punishment even though, before instructing the jury, the court said, “The Court has prepared 10 forms of verdict. Each of the 10 relate to findings of guilt either for both charges or one or the other and relates to the different ranges of punishment.” If this is not sufficient to dispose of the claim, during its deliberations the jury returned to the courtroom and posed the problem: “The jury had the question in regard to the 10 possibilities that were listed in the back and the question had to do with the concurrence of the length of sentence.” After extended colloquy the court inquired whether “either counsel have any objection to the Court stating now orally that if multiple punishment is assessed by the jury, the jury does not have the authority to order them to run concurrently.” Defendant’s counsel responded “That’s right. No objection.” In these circumstances the assignment of error has no merit.

As to the larceny conviction, however, there is substantial merit in the appellant’s claim that “it was error to give Instruction 2 because of its failure to describe any specific articles of stolen property.” Instruction 2 submitted both the felony offenses of burglary and stealing in a single instruction and particularly as to stealing did not specify or set forth the items charged in the information and shown by the proof, the gun, the clock and the gin, instead the instruction hypothesized a finding of guilt as to the stealing upon a finding that the “defendant did wilfully and feloniously steal, take and carry away from said building, with the intent to convert to his own use and permanently deprive the owner thereof any goods, personal property and merchandise of any value whatever, the property of James Laflin.” (Emphasis supplied.) The instruction was drafted in this manner even though Instruction 4 which submitted stealing of the value of “less than fifty dollars” (Section 560.161, subd. 1(1) RSMo 1959, V.A.M.S.) set forth the specified items. It may be that the instructions were drafted and given in this manner on the assumption that the case is governed by subsection 2 of § 560.161, which provides that “The offense defined in subsection 2 of section 560.-156 (“Stealing”) is deemed a felony regardless of the value of the property stolen and a person convicted shall be punished as provided in subdivision (2) of subsection 1, if the property intentionally stolen: (1) Is taken from a dwelling house or person.” Mr. Laflin described his 300 acre ranch and its living quarters as a “lodge” or “summer home” and perhaps that is sufficient to bring the case within this statute, although the charge and conviction are of second degree burglary. Section 560.050 RSMo 1959, V.A.M.S. Nevertheless that does not dispose of the immediate problem, the charge and proof were that irrespective of value the appellant was guilty of stealing specified items, 3 or 4 out of 14, and the instruction permits a conviction of the felony of stealing upon a finding that he “stole any of the personal property kept in said shop, irrespective of whether the jury found defendant had stolen any of the four items alleged in the information to have been stolen. In other words, to illustrate, the instruction authorized conviction of defendant if it found that he stole any of the clothing (of which there was highly substantial evidence), despite the fact that the information did not charge him with stealing clothing, or despite the fact that the jury may not have found beyond a reasonable doubt that he stole any of the items described in the information.” State v. McBride, Mo., 366 S.W.2d 374, 379. The McBride case and State v. McCollum, Mo., 377 S.W.2d 379, are precisely in point and up to now controlling and in the McCollum case a house in Independence was burglarized and several items were stolen, the appellant being specifically .charged with stealing a television set and a sewing machine. An examination of the files in those cases reveals that there were separate instructions on burglary and stealing. But in the Mc-Collum case after stating that “no other instruction required a finding that Mc-Collum stole the television and the sewing machine as charged in the information” the court followed State v. McBride and for this specific reason reversed and remanded the stealing conviction.

Accordingly, the judgment of conviction of the defendant for the crime of burglary in' the second degree is affirmed. The judgment of conviction of the defendant for stealing in connection with the burglary is reversed and the charge of stealing is remanded for further proceedings consistent with this opinion.

STOCKARD and PRITCHARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.