author: COIL, Commissioner.

text:
    STATE of Missouri, Respondent, v. John Allen BROWN, Jr., Appellant.
    No. 49221.
    Supreme Court of Missouri, Division No. 1.
    Oct. 8, 1962.

      Thomas F. Eagleton, Atty. Gen., Carl R. Gaertner, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   COIL, Commissioner.

A jury convicted John Allen Brown, Jr., of robbery in the first degree and fixed his punishment at ten years in the state penitentiary. He has filed no brief on his appeal from the ensuing judgment and thus we examine the assignments of error contained in his motion for new trial.

Assignment 4 charges that the trial court erred in failing to sustain defendant’s motion for judgment of acquittal at the close of the state’s case. Defendant offered evidence in his defense and thereby waived the motion. State v. Hutchin, Mo., 353 S.W.2d 701, 702 [2].

Defendant’s assignment 5 challenges the sufficiency of .all the evidence to have made a submissible case. The evidence viewed from a standpoint favorable to the state tended to show that Richard Davis was employed at a Gold Crown Liquor Store in Kansas City and, about 11:20 on the night of May 23, 1961, he was in the store talking with a customer, Mr. Halsey, when a man, later identified as the defendant, grabbed him around the neck, pointed a revolver at both Davis and Halsey, forced them into a rear room where defendant took their money and shot and wounded Halsey. Davis and Halsey were then ordered to the basement. When they discovered that defendant and another man, apparently with defendant, had left, they returned to the store, called the police, and discovered that $40 had been taken from the cash register. Davis later identified the man who grabbed him around the neck, pointed the gun at him, and took his money, as the defendant. Defendant and-a companion were arrested in the early morning of May 25, 1961, and, while being searched, a revolver dropped from defendant’s clothing to the ground. The bullet which wounded Halsey at the time of the robbery had been fired from that gun.

It is apparent from the foregoing summary of the evidence that a jury reasonably could have found that defendant feloniously took money from Davis’s person against his will by putting him in fear of immediate injury to his person, and was thereby guilty of robbery in the first degree. Section 560.-120 RSMo 1959 and V.A.M.S.

Defendant’s new trial assignment 1 is that the trial court “erred in refusing defendant’s instruction numbered-as to alibi and giving the State’s instruction numbered five (5) as to alibi.” The foregoing specification is too general to preserve anything' for appellate review. Supreme Court Rule 27.20, V.A.M.R.; State v. Gannaway, Mo., 313 S.W.2d 653, 655 [2]. We have, nevertheless, examined the alibi instruction given by the trial court and find that it adequately submitted the alibi defense.

Assignment 2 complains of that portion of the “presumption of innocence” instruction which told the jury that a doubt to authorize an acquittal ought to be a substantial doubt and not a mere possibility of defendant’s innocence. The entire paragraph which contained the phrase to which objection is made was the second paragraph of instruction 4. The first paragraph told the jury that the law presumed defendant’s innocence and that the presumption entitled defendant to an acquittal unless the evidence as a whole satisfied the jury of defendant’s guilt beyond a reasonable doubt. The second paragraph was : “The Court instructs the jury that if they have a reasonable doubt of defendant’s guilt, they should acquit, but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching defendant’s guilt and not a mere possibility of defendant’s innocence.” The instruction does not, as defendant contends in his motion for new trial, place “the burden of proof of his innocence upon defendant,” nor does it weaken the state’s burden “of proof beyond a reasonable doubt.” State v. Drake, Mo., 298 S.W.2d 374, 377 [7,8].

Assignment 3 that the verdict of the jury was contrary to the law and evidence in the case “in that the evidence is not inconsistent with the innocence of the defendant” was too general to preserve anything for appellate review. Supreme Court Rule 27.20; State v. Townsend, Mo., 327 S.W.2d 886, 887 [2].

Assignment 6 is that the trial court “erred in limiting and refusing to permit defense counsel to cross examine the State’s witnesses as to what they remembered that they testified to in two previous trials of this defendant and in admonishing defense counsel upon his attempt to do so, for purpose of impeachment.” It is doubtful that the foregoing is sufficiently specific to preserve any question for appellate review. See State v. Pitts, Mo., 282 S.W.2d 561, 563 [10], and State v. Brewer, Mo., 325 S.W.2d 16, 19 [7]. We have, nevertheless, examined the record with respect to the error assigned. Defendant apparently refers to two instances in which the trial court indicated to defendant’s counsel that he could not cross-examine the state’s witnesses concerning their testimony at a prior trial of the same case or at a prior deposition unless he had before him a transcript of the witnesses’ testimony. The difficulty with defendant’s position is that in neither of the instances in question does the record show either that defendant’s counsel was in fact deprived of the opportunity to elicit whatever information he desired or that defendant’s counsel was not satisfied to abide by the court’s view with respect to cross-examination as it was explained to him. Defendant’s counsel made no objection to the court’s rulings and, on the record before us, we properly may not hold that the trial court unduly limited defendant’s counsel’s cross-examination of the state’s witnesses.

Assignment 7 complains of the admission in evidence of two records of the Western Union Telegraph Company purporting to show that defendant purchased a money order on a certain day. Defendant obj ected on the ground that the exhibits were inaccurate. His motion for new trial charges that the witness who identified the records did not make them nor was he the custodian of them at all times during the company’s business hours. As noted, defendant was arrested in the early morning of May 25. Defendant testified that shortly prior to his arrest he had been at a certain Western Union office purchasing a money order. In rebuttal, the state adduced the office manager of the Western Union office who identified Exhibit 16 as an office record, a copy of a receipt for a money order that had been issued to John Brown, Jr., at 5:25 a. m. on May 24, 1961, and identified Exhibit 15 as an office record, a daily cash report for May 24, 1961, indicating that the money order in question was issued on May 24, 1961. The witness testified that both exhibits were records made in the usual course of business of Western Union; that Exhibit 16 was made under the witness’s supervision at the time of the issuance of the money order, and Exhibit 15 was made at the completion of an employee’s regular daily tour of duty on May 24.

It is, of course, settled that an assignment of error as to the admissibility of evidence does not preserve a question for appellate review where the reasons assigned in the motion for new trial were not presented to the trial court at the time of the objection to the evidence. State v. Hernandez, Mo., 325 S.W.2d 494, 496 [3]. Furthermore, it is apparent from the above-stated testimony concerning the exhibits in question that they were admissible under the Uniform Business Records as Evidence Law. Sections 490.660-490.690 RSMo 1959 and V.A.M.S. See Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663, 666 [1-3], 55 A.L.R.2d 1022.

Assignment 8 complains of allegedly prejudicial and inflammatory argument by the prosecuting attorney in that he was, according to defendant, permitted to point a revolver in the direction of the jury and pull the trigger, and to express his opinion that the defendant was guilty, and to indicate that he knew more about the case than the jury had been told. An examination of the record shows that there was no objection made to any portion of the prosecutor’s argument which possibly could fall within any of the categories of argument indicated by assignment 8. Defendant, having failed to object at the time of the argument, may not now complain. State v. Smith, Mo., 324 S.W.2d 702, 706 [4]. There is no claim in defendant’s motion, nor properly could there have been, that the argument was of a nature or type which called for the intervention of the court on its own motion.

Assignment 9 complains that the court failéd to instruct to the effect that the jury should not “engage in or be swayed by guess, speculation, conjecture or suspicion, no matter how strong their suspicion might have been in arriving at their verdict.” It is apparent that the suggested subject matter did not constitute a question of law upon which the trial court was required to instruct by the provisions of Supreme Court Rule 26.02, inasmuch as such matters were clearly collateral. The trial court was not required to instruct of its own motion on collateral matters and the record shows that no instruction covering the suggested subjects was offered by the defendant. See State v. Chaney, Mo., 349 S.W.2d 238, 240.

Assignment 10 charges the trial court with error for admitting in evidence the rebuttal testimony of a witness who stated that the gun which was used in the holdup looked like a gun the witness had theretofore delivered to Covington as security for a loan (Covington was the person arrested with defendant), for the stated reason that the witness testified that the gun he gave Covington was a 38-caliber revolver when the gun used in the holdup and in evidence was a 32-caliber revolver. The record shows that the witness also said he was not sure of the caliber of the gun he gave Covington. There is no merit in the contention because defendant made no objection to the witness’s testimony for the reasons he now urges and, in any event, it' is clear that the testimony was properly admitted. Any discrepancy in the witness’s description of the gun he gave Covington compared with the gun used in the holdup affected the weight of the testimony and not its admissibility.

The eleventh and last assignment of error alleges that since his conviction defendant has discovered new evidence “which completely exonerates him to-wit; a written statement of David Covington, a copy of which is attached hereto.” Cov-ington’s statement asserted that the robbery for which defendant Brown was convicted was in fact committed by Covington and a companion known as “Bubba,” and that the defendant had nothing to do with it. The record shows that a document titled “Affidavit of Newly Discovered Evidence” apparently was filed on November 29, 1961, the same day defendant’s notice of appeal was filed and nine days after defendant had been sentenced in accordance with the verdict. The affidavit asserted that the newly discovered evidence consisted of a summons issued to the defendant by the Kansas State Highway Patrol on May 24, 1961, at 4:15 in the afternoon, and that the summons was discovered by defendant’s wife on November 25 at his home among some of his personal papers. Defendant’s “affidavit” seems to proceed on the theory that establishing his presence in Kansas at 4:15 p. m. on May 24, 1961, would impeach the testimony of the state’s rebuttal witness, the office manager for Western Union, to the effect that the records showed that defendant obtained a Western Union money order at 5:25 a. m. on May 24 rather than on May 25 as defendant hád testified. We are unable to follow defendant’s theory but, in any event, as was stated in State v. Pinkerman, Mo., 349 S.W.2d 951, 953 [4-6]: “ * * * to secure a new trial on the ground of newly discovered evidence it devolved upon appellant to show that the evidence first came'to his knowledge after the trial; that it was not due to lack of diligence that it did not come sooner; that it was so material that it would probably produce a different result on a new trial; that it was not merely cumulative; that the object of the testimony was not merely to impeach the character or credit of a witness, and the affidavit of the witness himself should be produced, or its absence accounted for. State v. Brotherton, Mo.Sup., 266 S.W.2d 712, 718.”

The Covington statement attached to the motion for new trial was not in the form of an affidavit; there was no showing that the evidence therein set forth first came to defendant’s knowledge after the trial; and it appears from the evidence in the case that Covington and defendant were friends and were arrested together, indicating that Covington could have been produced by defendant to testify at the trial. The affidavit filed by defendant at the time he filed his notice of appeal, irrespective of all other reasons, is insufficient to warrant the granting of a new trial, because, even on defendant’s theory, it would serve no purpose other than to impeach the rebuttal testimony of the Western Union office manager ; and newly discovered impeaching testimony, as noted in the Pinkerman case, supra, does not justify the granting of a new trial.

We have examined those record matters which we are required to review and find no error in connection with them.

The judgment is affirmed.

HOLMAN and HOUSER, OC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Lillie Mae BROOKS, Appellant.
    No. 49327.
    Supreme Court of Missouri, Division No. 1.
    Oct. 8, 1962.

      Thomas J. Allen, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Allen J. Roth, Special Asst. Atty. Gen., Jefferson City, for respondent.
   COIL, Commissioner.

Lillie Mae Brooks was convicted of second degree murder and her punishment fixed at twelve years in the state penitentiary. Inasmuch as she has filed no brief on her appeal from the ensuing judgment, we examine the assignments of error in her motion for new trial.

Assignment 11 was that the trial court erred in failing to sustain her motion for judgment of acquittal at the close of the state’s case. Defendant waived that motion by offering evidence in her defense. She does not contend that there was no sub-missible case at the close of all the evidence.

The evidence tended to show that on July 18, 1961, about 6:45 p. m., defendant and her then husband, Milton Brooks, were walking west on the north side of Lucas Avenue in St. Louis toward their residence. Their automobile was parked facing west at the north curb of Lucas in front of their house. When they had reached a place on the sidewalk approximately even with the rear of the car, Milton went to the rear of the automobile and bent over as though he intended to open the trunk; whereupon defendant walked to a place behind her husband, reached under her blouse and withdrew a knife which she had theretofore concealed with which she stabbed her husband in the back. Milton died shortly thereafter from the wound thereby inflicted. A friend of deceased removed the knife from and assisted Milton to a prone position. The knife dropped to the street after it was pulled from deceased’s back and was near deceased’s body. Exhibit 3 was identified as a photograph showing the automobile and the knife in the street after deceased’s body had been removed. Defendant, arrested about 7:15 p. m., about a block from her residence, was taken to a police station where she told an officer that she and her husband had been arguing about a woman who lived next door; that when they returned to the residence on the occasion in question, the husband went to the back of the car to get some shoes from the trunk; that she, in the meantime, went into the house, got a knife, concealed it in her blouse, and went up to her husband; that he cursed at her and grabbed her arm and then turned around as if to open the trunk and she stabbed him. There was testimony that at the time of her statement defendant’s eyes were black and that she had bruises on her arms, which she told the officer had been inflicted by her husband. Defendant’s written statement was to the effect that after she had obtained the knife and had hidden it under her blouse, her husband was at the car and locking the trunk when she approached him, that he pushed her back and had a wrench or something in his hand, and, after he turned around, she stuck him in the back. At the trial, defendant testified to numerous assaults and other acts of mistreatment by deceased and said that on the day in question they had been to a picnic and upon their return defendant had mistreated her; that later she found him talking to the “other woman” and that she and deceased then started walking up Lucas Street arguing; that deceased had tried to push her into a doorway and that he had an open knife in his hand and swung at her with the knife and scratched her arm; that she was in fear of her life, and she doesn’t remember whether she stabbed him or just when she did, if so, but that it must have been after he hit her. Further testimony will be related as necessary to the disposition of specific assignments.

Defendant’s new trial assignment 1 is that the trial court erred in permitting testimony concerning and in allowing the jury to see state’s exhibit 3 when it was held by a witness on the stand. The exhibit was a picture showing the knife in the street at the rear of an automobile. The reason assigned in the new trial motion is that there was no showing as to who placed the knife in the position shown in the exhibit. The record shows that exhibit 3 was never offered or admitted in evidence and that defendant made no objection to the exhibit or to any testimony concerning it. Consequently, there is nothing concerning the exhibit preserved for our review. State v. Bland, Mo., 353 S.W.2d 584, 586 [3-5], We observe, however, that, as indicated in the fact statement above, there was testimony that the knife fell to the position apparently shown on exhibit 3 immediately after being pulled from the back of deceased.

Assignment 2 charges the trial court with error in making a statement to a member of the jury panel at the time the judge excused the prospective juror by reason of the answer he (the juror) had made to a question. The record shows that defendant’s attorney asked the panel whether any member had been the victim of a crime. One answered that he had been held up and that such would tend to prejudice him for or against one of the parties. The court asked whether the juror felt his experience would interfere with his judgment even though the case on trial involved a crime of a different type. The panel member then indicated that he probably would not be influenced by his experience; but the court pointed out that the prospective juror had stated theretofore that he would favor the state and, therefore, he was going to excuse him, adding that he, the trial judge, wished to point out how unreasonable it was for the panel member to let his personal experience in a holdup influence him in a case which involved no such aspect. Thereupon, the panel member was excused. Defendant in his motion for new trial contends that the court’s remarks effectively prevented any prospective juror from thereafter stating his true feelings on the question of prejudice even though another panel member might have been the victim of a crime. Aside from the fact that the record does not show that any other panel member answered that he had been the victim of a crime, there was no objection to the court’s statement at the time and thus nothing has been preserved for our review. State v. Curtis, 324 Mo. 58, 23 S.W.2d 122, 125 [9]; State v. Keller, Mo., 344 S.W.2d 65, 67.

Assignments 3 and 4 charged the court with error in refusing to permit Ethel Sanders, a state’s witness, to disclose on cross-examination, as defendant’s offer of proof indicated she would, that she had, a month prior to her testimony and some 4[4 months after the occurrence of the incident on trial, stabbed or cut her brother’s arm. The reasons stated in support are: because her brother was a witness endorsed by the state and the jury was entitled to decide whether Ethel Sanders had stabbed her brother to prevent him from testifying; and because such testimony would show that Ethel Sanders “was herself guilty of a crime and this would reflect on her character and veracity.” The record shows that Ethel Sanders testified that she lived in the same house as the Brookses and was sitting on the front step when she saw defendant stab her husband in the back as he faced the trunk of his automobile. On cross-examination, defendant’s counsel elicited the fact that her brother went to the hospital because of a cut arm two days pri- or to the present trial. The question, how her brother received the cut on his arm, was objected to on the ground that it was immaterial. The trial court, after establishing that the arm injury had occurred about a month ago, sustained the objection and a like objection to the question as to who had stabbed the witness’s brother. Out of the jury’s hearing defendant’s counsel offered to prove that the witness had stabbed her brother “and this was all tied in together.” The court sustained the objection to the offer, pointed out that no conviction of the witness had been shown, and invited counsel to pursue the matter at a later time, which counsel failed to do. At the trial, defendant’s counsel did not disclose directly to the court, and certainly there was no indication from the question asked or the offer of proof made, that he intended to show that the witness, Ethel Sanders, had stabbed her brother to make him unavailable as a witness at the present trial. As to defendant’s further contention that Ethel’s answer would have impeached her credibility by showing that she was guilty of a crime, we observe that defendant offered no record of the witness’s conviction and made no offer to prove otherwise that the witness had committed a crime, and, under those circumstances, the witness could not be compelled to answer a question which might expose her to a criminal charge, even though the answer might have affected her credibility as a witness. The statement of the court in State v. Potts, 239 Mo. 403, 144 S.W. 495, 498, is apropos: “The rule in this state, as to the scope allowed in the cross-examination of a witness, is that ‘he may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except when the answer might expose him to a criminal charge.’ State v. Long, 201 Mo. [664], loc. cit. 675, 100 S.W. [587] 590, and cases cited. There is this limitation to the rule that, while such questions may be asked, it is largely within the discretion of the trial court as to the extent to which such cross-examination will be permitted.”

Defendant’s assignment 5 charges that the trial court erred in permitting a witness who had not been endorsed upon the information to identify a hospital record. There is no merit in that contention. There was no necessity to have endorsed a witness who appeared only for the purpose of identifying a public or hospital record. State v. Malone, Mo., 301 S.W.2d 750, 756 [11, 12].

Assignments 6 and 7 charged the trial court with error in refusing to permit a medical doctor to answer a hypothetical question as to the mental condition of Milton Brooks thus depriving the jury of the doctor’s opinion as proffered in an offer of proof to the effect that deceased “was a paranoid and an individual that would be dangerous and likely to inflict harm upon the defendant, * * Defendant, by cross-examination of state’s witnesses as well as by examination of her witnesses and by her own testimony, offered proof of prior acts of physical violence committed by deceased upon defendant, his then wife, proof of fights between them on several prior occasions, proof that her husband subjected her to unnatural sexual relations, and proof that deceased slapped and kicked defendant when they returned from a picnic on the afternoon of the day defendant killed her husband. Defendant’s counsel asked the doctor this question: “ * * * please assume that a man forty-two years of age previously treated his wife well, and that he then commenced to attack her and to heat her badly on several occasions and that he blackened her eyes, and that he then forced her to undergo unusual sexual activities which he had previously not done, and that he had beat her a month prior to his decease. Doctor, would you have an opinion as to this man’s mental condition?” After an objection was sustained, an offer of proof was made that the witness, if permitted, would state his opinion that Milton Brooks was “psychotic and likely to do harm to the defendant.” The trial court sustained an objection for the stated reason that the question as put was wholly insufficient. We are of the view that the trial court correctly ruled. In addition to the fact that the pertinent part of the proffered answer would not have been responsive to the question as asked, the question did not contain details which would seem to be necessary to form the basis for a relevant, probatively valuable opinion. The question did not indicate the length of time during which deceased had treated his wife well; the time when the attacks began or the frequency of them; nor did the question negative any justification or provocation for such attacks; the question did not indicate the type of sexual activity described in the question by the conclusory statement “unusual”; and the question did not limit the inquiry as to deceased’s mental condition to any particular or relevant time. The question as framed was so general and so inadequately described and related the facts in evidence that any opinion based thereon would have been at best of insignificant or no probative value, and probably irrelevant. Defendant’s counsel did not attempt to reform and restate a hypothetical question after the trial court had ruled as above stated. Under the circumstances, we hold that the trial court did not err in its rulings.

Assignments 8 and 9 are that the court erred in refusing to permit defendant’s witness Williams to testify, as an offer of proof indicated he would, that in May of 1961, some two months prior to the day deceased was killed, defendant visited him in his capacity as a lawyer; that she told him that the bruises and contusions on her face, the bruises on her leg, and the fact that her eyes were partly closed, were due to injuries inflicted upon her by her husband. The trial court did not err because the proffered testimony was defendant’s self-serving declaration independent of the res gestae of the crime. “A defendant is not permitted to create evidence by adducing testimony of his own self-serving act or declaration which is independent of the res gestae of the crime. State v. Tripp, Mo.Sup., 303 S.W.2d 627; State v. Perkins, Mo.Sup., 92 S.W.2d 634; State v. Golden, 330 Mo. 784, 51 S.W.2d 91; State v. Blitz, 171 Mo. 530, 71 S.W. 1027; State v. Shermer, 55 Mo. 83; Underhill’s Criminal Evidence, 4th Ed., § 255, pp. 480-483.” State v. Brown, Mo., 312 S.W.2d 818, 822.

Assignments 10, 14, and 15 have to do with the following argument by the state’s attorney: “ * * * then he wants you to believe here, that because of the fact that this woman said that she was beaten on many occasions, that she was afraid, that she was afraid for her life when she did this to this man. Now, I ask you this, if she was so darned afraid, why did she go up that alley after him, and why did she take that knife with her? That is the whole answer to the whole story, if she was so doggoned afraid, why didn’t she stay in the house where she was, why didn’t she stay in her own home and call for help, call the police, or go some place else, why take a knife and stick it into her bosom and go looking for a man if she was afraid. That is the answer to this whole question of self-defense. Now, any jury that would be foolish enough, and I mean that literally, that any jury that would be foolish enough to believe that this woman killed that man in self-defense, should be ashamed to look at themselves.” Whereupon the following occurred: “MR. SURINSKY: Just a minute, I am going to object to that, trying to prejudice the jury. THE COURT: Well, it is an unusually strongly worded statement, and I think probably it ought to be eliminated although I am not — that expressed no view about the accuracy or not. We will disregard that statement. MR. CAHILL: Yes, your Honor, I think that it is perhaps too strong, perhaps I got carried away from my own emotion over the thing, but I think that all of you gentlemen, using plain common sense should realize that if this is a case of self-defense, then nobody could ever be convicted at any time of anything. That is just how foolish self-defense is in this case * * Defendant contends in her motion for new trial: that the statement as to how foolish the jury would be to believe defendant’s self-defense evidence, constituted an expression of the personal opinion of the assistant circuit attorney as to defendant’s guilt and thus prevented a fair verdict from the jury; that the court erred in its comment concerning that statement for the reason that it was an expression of opinion by the court which would tend to inflame and prejudice the jury; and that the court’s remarks indicated that the court agreed with the state’s attorney’s characterization of the self-defense plea and thus constituted “an opinion of the Court” and invaded the province of the jury. As shown by the excerpt of the record reproduced above, defendant’s counsel was apparently satisfied with the statement of and the action by the court at the time because no objection was made to the court’s statement and there was no request for any further action. Under the circumstances, defendant is in no position to now complain. State v. Armstead, Mo., 283 S.W.2d 577, 582 [13].

Assignment 12 that the verdict was against the weight of the evidence is too general to have preserved anything for appellate review.

Assignment 13 is that the verdict constituted “cruel and unusual punishment and as such is against the Constitution of the State of Missouri and the Constitution of the United States.” That assignment is too general to have preserved anything for appellate review. State v. Pruett, Mo., 342 S.W.2d 943, 945. We observe that the punishment assessed by the jury was within the limits prescribed by Section 559.030 RSMo 1959 and V.A.M.S., and, consequently, may not be adjudged excessive or cruel and unusual without some showing not madé in this case and not apparent on this record. State v. Mayabb, Mo., 316 S.W.2d 609, 610 [1, 2].

Assignments 16, 17, and 18 complain that the trial court erred in giving instruction 4, a manslaughter instruction, for the reasons that it failed to define passion or provocation, it failed to instruct that a battery by deceased at the time of the homicide was sufficient to reduce the charge to manslaughter, and that it was abstract. None of those objections are well taken. It perhaps should be observed' preliminarily that defendant was not convicted of manslaughter under instruction 4 but was convicted of murder in the second degree under instruction 3 of which no complaint is made. If, however, there were errors in the instruction on the lesser offense of manslaughter, possibly there could be ground for complaint on the theory that an erroneous manslaughter instruction prevented the jury from convicting of that lesser crime rather than of murder in the second degree. See State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 321 [12]. In any event, the manslaughter instruction in this case was in a form which has been generally approved heretofore. It directed that if the jury found defendant not guilty of murder in the second degree then to consider whether he was guilty of manslaughter. It defined manslaughter as the killing of a human being not herein declared to be murder in the second degree or excusable or justifiable homicide. It then hypothesized that if the jury found beyond a reasonable doubt that defendant feloniously and intentionally, without malice and without premeditation, mortally wounded Milton Brooks by stabbing- him, and that such act, if committed by defendant, was not justifiable or excusable homicide and not in lawful defense of her person as set forth in another instruction, it would find the defendant guilty of manslaughter; and that unless it did so find, it would acquit the defendant. The instruction then defined excusable homicide and justifiable homicide. See State v. Foster, supra, 355 Mo. 577, 197 S.W.2d 319, 320; State v. Pillow, Mo., 169 S.W.2d 414, 418; State v. Chamineak, Mo., 343 S.W.2d 153, 164 [22].

It is apparent from the above description of the instruction that it is not abstract, as contended by defendant. It hypothesizes the necessary facts to be found by the jury prerequisite to a verdict of guilty. Furthermore, inasmuch as the instruction does not mention passion or provocation, there was no possible reason to “define” those terms as contended by defendant. It is probable that defendant meant by her charge that the instruction failed to “define,” that the instruction failed to instruct concerning the matters of passion and provocation, as may be indicated by the further charge that the court failed to instruct “that a battery by Milton Brooks, deceased, at the time of the homicide is sufficient to reduce the charge to manslaughter.” In State v. Gore, 292 Mo. 173, 237 S.W. 993, 996, 997, the court held that since the definition of manslaughter enacted by the legislature in 1919 (see present Section 559.070 RSMo 1959 and V.A.M.S.) the elements of “heat of passion” and “reasonable provocation” need not be included in a manslaughter instruction as they are not necessary elements of the crime; and that an instruction defining manslaughter in the words of the statute and excluding first and second degree murder and justifiable and excusable homicide is sufficient. It is apparent that the instruction in the present case in the light of the ruling of the Gore case is not deficient for any of the reasons assigned by defendant.

New trial assignments 19 and 20 attack instruction 5 on self-defense. The first complaint is that the instruction in one place assumed that defendant had in fact stabbed and wounded deceased rather than requiring the jury to find that she had. There is no merit in that contention. The instruction twice specifically required a finding that defendant stabbed and wounded Milton Brooks and, considered as a whole, there reasonably can be no doubt that the jury understood that the instruction so required.

The other attack is that instruction 5 told the jury in part that “although defendant may have really believed herself to be in danger, yet she cannot be acquitted on the grounds of self defense unless it further appears from the evidence that she had reasonable cause for such belief. On the other hand, even if no real danger existed, yet if defendant had reasonable cause to believe and did believe that it existed, she should be justified in acting upon such belief.” Defendant objects to-the use of the word “should” in the last sentence above quoted instead of the word “would,” contending in her motion for new trial that the word “should” gives the jury the right to accept or reject defendant’s justification, whereas the word “would” directs that the jury must acquit if it believes defendant was justified in acting in self-defense. An examination of the entire self-defense instruction results in the conclusion that the defendant’s contention in the respect noted is unsubstantial. The jury reasonably would have understood the circumstances under which defendant was justified in acting upon a belief that there was danger if she had reasonable cause to believe it existed and would not have been misled by the word “should” in the context noted. The word “ought” is a synonym for “should,” and the expression “she should be justified” is tantamount to “she ought to be justified.” In a prior part of the instruction the jury was directed (to which defendant made no objection) that if defendant believed and had reasonable cause to believe that it was necessary to stab deceased to protect herself, then “she ought to be acquitted on the ground of self-defense.” We consider the criticism of the instruction to be technical and without substance.

Defendant finally contends in assignment 21 that “the Court erred in failing to give an instruction on threats although there was evidence of threats.” The answer to that assignment is that there was no evidence of threats by the deceased toward the defendant and, consequently, for that reason, irrespective of any others, defendant was not entitled to an instruction as to “threats.”

We have examined those record matters which we are required to review and find no error in connection with them.

The judgment is affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Cecil Elmer FLOYD, Appellant.
    No. 49038.
    Supreme Court of Missouri, Division No. 2.
    Oct. 8, 1962.
    Robert F. Sevier, Liberty, S. Richard Pratt, North Kansas City, Johnson Story, Cameron, for appellant.
    Thomas F. Eagleton, Atty. Gen., Joseph G. Stewart, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

Upon a charge of murder in the first degree while “attempting to perpetrate rape” upon his granddaughter, Joann, age 13, Cecil E. Floyd, age 65, has been found guilty of manslaughter and his punishment fixed at ten years’ imprisonment.

About 8 o’clock on May 27, 1960, Joann disappeared from her home on North Main Street and on June 7 her decomposed body was found in a rather secluded area known as Scott’s Addition on the outskirts of Excelsior Springs. Joann and her family had formerly lived in Scott’s Addition and her body was found by a search party of which Floyd was a member if not the organizer. Since the conviction is to be reversed and the cause remanded because of the admission in evidence of a photograph it is not necessary to detail the circumstances relied upon by the state, it is sufficient to say that there was no attempt on the part of the state to submit the charge of attempt to rape.

Initially Joann’s body was identified by her brother, Edward, he did not claim to recognize her features, his identification was from' her wristwatch, bracelet, shoes and her “rotted” red dress. At the outset of the trial defendant’s counsel made the admission that the body found in Scott’s Addition was Joann so the state would nbt be required to make “proof of identification.” The limitation- on the admission was “We are not agreeing we had anything to do with the death, simply agreeing- that is the body.” Edward, as did other witnesses, described the body, its location and position in detail, particularly the fact -that the brush and weeds around the body were all “máshed” down. Incidentally, after the body was removed there were several photographs of the area and these too were offered and received in evidence without objection. Edward first described the body and the area without reference to photographs and then, as other witnesses did subsequently, identified ot described the body and the scene after looking at exhibit one which was not offered in evidence until one of the state’s principal witnesses, a deputy sheriff, testified. Exhibit one is a photograph of a decomposed body, admittedly the body of Joann. Edward and all of the state’s witnesses, eight or nine in number, described the location of the body as being in the weeds and grass on the side of a hill and alongside a path. They all agreed that the head was to the east, the feet to the west and that her dress was pulled up around the waist and there were no panties or underclothes. The body was on its back, the legs apart, the right foot under the left knee.

Aside from the photograph itself the body and the photograph were best described by the coroner, a doctor of thirty years’ experience. It was he who sent the body to a pathologist. These were the pertinent questions and answers on direct examination:

“A. The body that I saw was a dead body.
. “Q. And could you tell the Court and Jury the state of the body?
“A. The body was badly decomposed. In fact, a lot of the tissue was completely gone, and the skull itself was — I touched the skull with my foot and it rolled away from the body, it was that badly decomposed.
“Q. In your opinion from examination of the body, could you determine the cause of death?
“A. No, sir.
“Q. Would it be possible to determine the cause of death?
“A. I don’t think so.
“Q. For what reason?
“A. The body was too badly decomposed. There wasn’t enough tissue left to determine the cause of death. Most of the organs were gone, and there was not any evidence of broken bones or bullets in the body from the x-ray by the pathologist, and so far as I know, no determination could have been made.
“Q. Would it be possible for you to determine whether or not JoAnn * * * had been suffocated (the state’s theory of her death) ?
“A. No, sir.
“Q. It wouldn’t have been possible for you to determine that?
“A. No, sir, not unless some of the bones had been fractured.
“Q. Are you testifying it was impossible for you to, at that time, or any time, to determine the cause of death?
“A. Yes, sir.
“Q. Because of the decomposition of the body?
“A. Yes, sir.
* * * ⅜= *
“Q. By cause of death, you mean whether or not it was by natural or unnatural means?
“A. Yes, sir.
“Q. And you likewise could not determine that there had been any attempt or any rape of this girl’s body?
“A. No, sir.”

After nine of the state’s witnesses had testified, several of them being members of the search party, and had described the position and location of the body, some of them from looking at the photograph, the state for the first time offered exhibit one in evidence in the course of the testimony of a deputy sheriff. Defendant’s counsel objected to the introduction of this particular photograph, stating and giving as reasons that the state’s witnesses had testified specifically “to the location of the body, its appearance, and even to the location of the arms and legs, and this exhibit couldn’t serve any purpose other than to inflame the jury and prejudice the jury against this defendant, and there has been no showing in addition thereto, that this defendant had any connection with the death of this girl.” This objection was made out of the hearing of the jury and following the objection there was a lengthy colloquy between court and counsel. In the course of the discussion state’s counsel described the exhibit as “a somewhat hideous photograph” and frankly said, “It is inflammatory.” But the prosecuting attorney said, “We planned this in advance Judge, and we feel that now is the time to present it. * * * We want to show how badly the body is decomposed and the condition of the body * * State’s counsel made this admission to the court, “We cannot prove the cause of death,” but counsel urged that the photograph “shows the state of the decomposed body, and the reason to show that is that it is impossible — there is no pathological proof of any cause of death.”

It is not necessary to consider in detail the rationale of photographs as evidence, it is sufficient to note that generally a photograph is “a superior substitute for words,” and yet for evidentiary purposes is “simply nothing, except so far as it has a human being’s credit to support it” and it must of course be “associated with a testifier.” 3 Wigmore, Evidence, § 790, p. 174; annotation 159 A.L.R. 1413; Baustian v. Young, 152 Mo. 317, 324, 53 S.W. 921. And generally it may be said that photographs, colored (annotation 53 A.L.R. 2d 1102) or so-called black and white, of corpses of the victims of homicides or of various parts of their bodies are admissible in evidence for several purposes, “such as showing the nature and location of the wounds or the position of the body, as well as to corroborate the prosecution’s theory as to the motive prompting the infliction of the lethal blow or to refute defendant’s plea of self-defense, to prove the identity of deceased, etc.” Annotations 159 A.L.R. 1413, 1414; 73 A.L.R.2d 769. These and other reasons or purposes for which photographs of corpses, even of decomposed bodies, are often properly received in evidence are enumerated in the annotations which list the illustrative Missouri cases. If the photographs illustrate any of these purposes and also meet the tests of relevancy and probative force their admissibility is said to be within the discretion of the trial court and it is not a completely valid objection that they are gruesome, or are merely cumulative or corroborative of the testimony of the witnesses. State v. Moore, (Mo.) 303 S.W.2d 60, 65; State v. Brown, (Mo.) 312 S.W.2d 818. There are, however, limitations and qualifications on the court’s discretion and the admissibility of such photographs, there may nevertheless be an objection to the relevancy of the fact shown or the prejudicial effect of the photograph may outweigh its probative value. McCormick, Evidence, § 152, p. 315; 3 Wigmore, Evidence, § 792, pp. 184-185; 23 C.J.S. Criminal Law § 852(1) c p. 353; State v. Moore, supra. The qualifications on the admissibility of such evidence are succinctly stated by the annotator, “such photographs should not be admitted where their sole purpose is to arouse the emotions of the jury and to prejudice the defendant, * * * the sound governing principle is that photographs which are calculated to arouse the sympathies or prejudices of the jury are properly excluded if they are entirely irrelevant or not substantially necessary to show material facts or conditions * * 73 A.L.R.2d, l. c. 802.

The photograph objected to here, exhibit one, was neither needed nor offered for any of the conventional reasons or purposes, — to identify the victim, to show the nature and location of the injury, to illustrate or prove the character of the weapon, the surrounding circumstances, to determine the degree of the crime, or to show the cause of death. As a matter of fact, by the state’s admissions, the body was in such a state of decomposition that most of these matters could not be found or illustrated, particularly by this photograph. In short, as the court said of another photograph in reversing a manslaughter conviction, this exhibit is “extremely obscene, offensive, vulgar, horrid, and repulsive” (State v. Robinson, (Mo.) 328 S.W.2d 667, 671), and any relevant probative value it may have is far outweighed by the fact that it is needlessly and manifestly inflammatory and therefore prejudicially erroneous. See also State v. Baldwin, 317 Mo. 759, 297 S.W. 10. For the reason indicated the judgment is reversed and the cause remanded.

BOHLING and STOCKARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: BOHLING, Commissioner.

text:
    STATE of Missouri, Respondent, v. Earl MILLER, Appellant.
    No. 49203.
    Supreme Court of Missouri, Division No. 2.
    Oct. 8, 1962.

      Thomas F. Eagleton, Atty. Gen., Margaret Bush Wilson, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   BOHLING, Commissioner.

Earl Miller was convicted of burglary and stealing under the habitual criminal act and sentenced to imprisonment for four years on each charge, said sentences to run consecutively. Consult §§ 560.045, 560.156, and 560.110. (Statutory references are to RSMo 1959, V.A.M.S.) He has appealed but has filed no brief. His motion for new trial is for consideration. An assignment questions the submissibility of the State’s case.

Earl Kuehner and his mother left their home at 4661 Adkins Street, St. Louis, Missouri, about 8:00 p. m. March 17, 1961, leaving the doors and windows locked. Arriving home about 12:50 a. m. March 18, they found the glass in the rear door ■broken and the door open. The front door was also open. The things in his and his mother’s rooms were disarranged. His mother’s chifforobe had been searched. A metal box (introduced in evidence as State’s Exhibit 2) with papers in it had been taken from the desk in his room and left open on his bed. He had four American Express Traveler’s Checks, total value $80, in a wallet in his desk. The wallet was left open on his bed, but the checks were missing. He had been required to place his signature on these checks when he purchased them at the bank. Kuehner testified that his collection of coins, valued at $50, a Springfield rifle, value $35, a Winchester rifle, value not stated, a pistol, value $10, his four American Express Traveler’s Checks, and his grandmother’s golden wedding band had been taken.

The police were notified of the burglary and about an hour later Officer Fred Henke lifted three latent fingerprints from State’s Exhibit 2, the metal box, which was still on the bed, onto a tape (State’s Exhibit 3). He gave this tape to Officer Gerald Hart on March 22nd, when he next saw him. Several days later Officer Robert Kaelin got the metal box (State’s Exhibit 2) from Kuehner and delivered it to Officer Hart.

Harold Sellers was in charge of a service station in East St. Louis, Illinois, between 11:00 p. m. and 7:00 a. m. On the night of March 20, 1961, defendant, in payment for some gas and oil purchased, tendered to Sellers a $20 American Express Traveler’s Check (State’s Exhibit 1) on which the name of the purchaser had been written over and was illegible. Defendant being unable to identify himself to Sellers’ satisfaction and failing to pay, witness called the East St. Louis police. Officer Jerry Sullivan and his partner answered Sellers’ call. Sellers gave them State’s Exhibit 1 and they took defendant and said exhibit to the East St. Louis Police Station. The following morning defendant was turned over to the St. Louis Police.

Witness Kuehner identified State’s Exhibit 1 by his signature and by the number on it as one of the American Express Traveler’s Checks taken from his wallet the night of the burglary.

Officer Gerald Hart, whose qualifications as a fingerprint expert were not questioned, testified he took a set of ink impressions of defendant’s fingerprints, State’s Exhibit 4; that he processed the latent fingerprints (State’s Exhibit 3) from State’s Exhibit 2, the metal box, and that defendant’s right middle and ring finger made the prints on State’s Exhibit 4 and on Kuehner’s metal box. This witness explained why and gave his opinion that it was impossible for different persons to have the same fingerprints.

We have not developed all facts favorable to the State.

The case was for the jury.

“A motion for a new trial shall be in writing and must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.” Supreme Court Rule 27.20(a), V.A.M.R. Consult § 547.030.

Assignments in defendant’s motion for new trial that the verdict and judgment “are against the weight of the evidence”; “against the greater weight of the evidence”; “against the concrete and substantial evidence,” and that the verdict “is the result of bias and prejudice on the part of the jury” are insufficient to preserve any issue for review. State v. Schramm, Mo., 275 S.W.2d 343[1, 2]; State v. Russell, Mo., 324 S.W.2d 727[14]; State v. Fields, Mo., 293 S.W.2d 952[10].

Defendant’s motion for new trial assigns error “in admitting into evidence the State’s exhibits for the reason that they had” not been properly identified; that the proper foundation had not been laid for their introduction, and that in each instance it was hearsay and in violation of the constitutional rights of the defendant; and in another assignment that error was committed “in not declaring a mistrial when the policeman testified that the defendant had been arrested for another crime” for the reason this was proof of another crime, put the character of defendant in issue and was immaterial and irrelevant as to the issues of this case, and that said statements were only to bias and prejudice the rights of this defendant. Twelve exhibits were introduced in evidence by the State, and seven policemen testified on behalf of the State. The provisions of Rule 27.20 are mandatory. State v. Tourville, Mo., 295 S.W.2d 1, 4[1]. One purpose of Rule 27.20 is to narrow the issues on appeal and state in separate paragraphs of a motion for new trial, in detail and with particularity, the same as points are to be presented in a brief, the issues having real merit in an intelligent manner and to avoid questions devoid of merit. Said assignments are too indefinite and do not comply with said Rule 27.20. State v. Thompson, Mo., 299 S.W.2d 468, 471[1] (b); State v. Thorpe, 359 Mo. 796, 223 S.W.2d 479, 480[3]. “Neither this court nor the trial court is required to read the record and speculate what particular instance (or why it constituted prejudicial error) defendant had in mind as falling within a stated conclusion in a motion for new trial or in a brief.” State v. Brookshire, Mo., 353 S.W.2d 681, 685[11]. State v. Gregory, 344 Mo. 525, 127 S.W.2d 408[2]; State v. Linders, Mo., 224 S.W.2d 386, 389[4].

The transcript before us discloses that the State’s exhibits, some of which are mentioned supra, were properly identified by the State’s witnesses and a proper foundation for their admission in evidence was laid before they were admitted. For instance, defendant attempted to have witness Sellers cash one of the American Express Traveler’s Checks identified by witness Kuehner as having been taken from the wallet left in his desk. This tended to establish defendant’s guilt of the offense charged. State v. Spaugh, 200 Mo. 571, 98 S.W. 55[3], 61; State v. Taylor, Mo., 324 S.W.2d 643, 646[4], 76 A.L.R.2d 671; State v. Fisher, Mo., 302 S.W.2d 902, 905[2].

Defendant’s last assignment is that the court erred “in not declaring a mistrial when a police officer testified” that after talking to another police officer he placed this charge of burglary and stealing against defendant for the reasons this testimony was improper and violated defendant’s right of confrontation under the Constitution and laws of this State. We consider the State’s presentation of this issue.

Officers Savetz and Rung brought defendant and State’s Exhibit 1 to St. Louis March 21st. Defendant was questioned about 2:00 p. m. and denied any participation in this burglary and stealing. He stated that Richard Hayes, of Maplewood, had given him State’s Exhibit 1. Witness Kuehner was called to police headquarters March 21st and identified State’s Exhibit 1 as one of his missing American Express Traveler’s Checks. The officers brought defendant in and Kuehner stated he did not know defendant and defendant said he had never seen Kuehner and had never been in Kuehner’s home. The officers were unable to locate Richard Hayes. The following day, March 22nd, defendant was released from custody under a writ of habeas corpus. His trial counsel represented him in that proceeding, and first opened up this fact issue.

Officer Mike Crnkowich testified on direct examination that he spoke to Officer Hart and, over objection that it was hearsay, when asked if he thereafter arrested defendant, answered: “I placed an additional charge on him,” stating when the question “Did you arrest defendant” was repeated: “No, sir, I didn’t.” The court, upon defendant asking for a mistrial, instructed the jury to disregard the answer given to the original question, but refused to declare a mistrial. Then, out of the hearing of the jury, the court asked why this officer had been put on the stand, and was informed defendant was in custody on a totally different charge; that the State was trying to avoid showing that arrest after defendant brought out he had been released from his original arrest for this burglary and stealing, and that the State should be permitted to show that the charge on trial was renewed without disclosing that defendant was also in custody for a different offense. Officer Crnkowich thereafter testified he spoke to Officer Hart and then placed this charge of burglary and stealing against defendant.

This case differs from State v. Chernick, Mo., 278 S.W.2d 741, 747[4], relied on by defendant in the trial court. Chernick was convicted of an assault with intent to kill during a robbery. The State, in its opening statement, in its case in chief, and in its arguments to the jury, stressed that after questioning William Scholl, one of the robbers, subsequent to his capture following the robbery, “there was an arrest order put out for the arrest of” Chernick. This was held hearsay and prejudicial as it tended to show inferentially or circumstantially that Scholl had implicated defendant as a participant in the robbery. Scholl did not testify in the Cher-nick case. In the case at bar defendant opened up the issue that he had been released from his original arrest for the offense on trial. The State thereupon had the right to meet this fact issue. State v. King, 342 Mo. 975, 119 S.W.2d 277, 283[11]; State v. Wilson, Mo., 320 S.W.2d 525, 528[3, 4]. Officer Hart, the fingerprint expert, had theretofore testified and his testimony, which was based on facts developed subsequent to defendant’s release from his original arrest, established that defendant’s fingerprints were on State’s Exhibit 2, Kuehner’s metal box, and, in connection with other testimony, defendant’s participation in this burglary and stealing. Defendant was accorded his right of cross-examining Officer Hart. It is to be presumed and we think it common knowledge that Officer Hart would officially report his findings establishing defendant’s connection with the offense on trial. The declaration of a mistrial rests largely in the discretion of the trial court and the circumstances of record do not establish that the court abused its discretion. State v. Bateman, 198 Mo. 212, 94 S.W. 843[9], 846, 847; State v. Taylor, Mo., 324 S.W.2d 643, 646[6, 7].

The foregoing disposes of the assignments in defendant’s motion for new trial. Our examination of the matters we inquire into under Supreme Court Rule 28.02 discloses no prejudicial error.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: STORCKMANjJtáge.

text:
    ST. LOUIS COUNTY, Missouri, a Body Corporate and Politic, and James H. J. McNary, as Supervisor of St. Louis County, Missouri, and Herbert G. Poertner, Public Works Director of St. Louis County, Missouri, Appellants, v. The CITY OF MANCHESTER, Missouri, a Municipal Corporation, and Gamble Construction Company, a Missouri Corporation, Respondents.
    No. 49159.
    Supreme Court of Missouri, En Banc.
    Oct. 8, 1962.

      William E. Gallagher, County Counselor of St. Louis County, Walter H. Smith, First Asst. County Counselor, for appellants.
    Boedeker, Weil & McMahon and Edgar G. Boedeker, Clayton, for respondent City of Manchester.
    Stamm, Millar & Neuhoff, David L. Mil-lar and Ray E. White, Jr., St. Louis, for respondent Gamble Const. Co.
   STORCKMANjJtáge.

This is a^ijijunctioKsiuiLwherein a Con-stitutionalSEJome Rule barter County seeks to enjoin a city-ofThe fourth class from constructing and operating a sewage treatment plant and related facilities outside of the city limits in a district designated as residential under the zoning laws and building regulations enacted by the county pursuant to its home rule charter. The defendants’ motion to dismiss the plaintiffs’ first amended petition was sustained and the petition dismissed. Plaintiffs’ motion for a new trial or, in the alternative, for a rehearing on the defendants’ motion to dismiss was overruled and the plaintiffs appealed.

The plaintiff St. Louis County is a body corporate and politic organized under a Constitutional Home Rule Charter pursuant to Art. VI, § 18, of the Constitution, V.A. M.S. Plaintiffs McNary and Poertner are the supervisor and director of public works, respectively, of St. Louis County. The defendants are the City of Manchester, a fourth-class city located in St. Louis County, and the Gamble Construction Company, a Missouri corporation engaged in the general construction business. St. Louis County is a political subdivision of the state and a construction of the Constitution of this state is involved.

The defendant City of Manchester acquired by purchase a four-acre tract of land located in an unincorporated area of St. Louis County approximately one mile east of its city limits and notified St. Louis County of its intention to construct a sewage treatment plant and related facilities on the tract. The city entered into a contract with the defendant Gamble Construction Company for the erection of the plant and facilities.

The land in question is located exclusively within a district zoned residential and designated by § 1003.040" and § 1003.120 of the St. Louis County Revised Ordinances as a “B” Single Family District. Section 1003.120 of the Ordinances specifically prohibits the construction', operation, or use of any business or industry not specifically enumerated therein. The section then enumerates the businesses permitted, and the construction and operation of a sewage treatment plant and related facilities are not uses permitted or enumerated. Chapter 1101 of the St. Louis County Revised Ordinances provides that it shall be unlawful to construct a building or structure within the areas of St. Louis County outside of incorporated cities without first obtaining a building permit; the defendants have not applied for, nor been granted, a building permit by St. Louis County or any of it's officials.

With respect to the powers of a Home Rule Charter County, § 18(c) of Art. VI of the Constitution provides that: “The charter may provide for the vesting and exercise of legislative power pertaining to public health, police and traffic, building construction, and planning and zoning, in the part of the county outside incorporated cit- * Pursuant to this constitu-íes; * tional authorization, the county enacted a comprehensive zoniflg ordinance which designated as residential the district in which Manchester seeks to construct and operate its sewage disposal plant and related facilities.

The City of Manchester asserts that the zoning ordinance of St. Louis County has no application and that it is authorized by law to establish its sewage disposal plant where it chooses in St. Louis County limited only by the terms of the state statutes applicable to cities of the fourth class. Section 71.680, RSMo 1959, V.A.M.S., authorizes such cities to acquire sewage disposal plants within or without the city limits, and § 79.380 provides that such cities may purchase or condemn within or without the city limits within five miles therefrom all necessary lands for sewer carriage and outfall. Art. IV, § 37, of the Constitution, on which the city relies as the authority for the legislative grants, declares that the health and welfare of the people are matters of primary public concern and provides that the general assembly shall establish a department of public health and welfare and may grant power with respect to the health and general welfare to counties, cities or other political subdivisions of the state.

St. Louis County does_naL-»jidniiake-J:o forbid or prohibit altogether the construction ot a sewage disposal plant in the county outside~ot the cityitmífs~5üF~contends^ that the location and construction of the sewage disposal ~plsñtruñdért:he statutes_mus_t.be mácRrrrTconformity with the county’s_laws 'and ordinances regulating the pjanning-and zoning of the unincorporated areas of St. Louis "County! Under the St. Louis County zoning law, locations for sewage treatment plants and related facilities are provided in “K” districts. There is no contention that these provisions are arbitrary or unreasonable.

We are confronted here with adverse claims of two governmental units, each claiming to have the superior right and power to designate the location of the sewage disposal plant. In determining this question, we must construe the constitutional and legislative provisions together and harmonize them if it is reasonably possible to do so. State on inf. Wallach v. Loesch, 350 Mo. 989, 169 S.W.2d 675, 681[11, 12]; City of Olivette v. Graeler, Mo., 338 S.W.2d 827, 833[6].

Planning and zoning, as well as sewage disposal, is a governmental function referable to the police power. Casper v. Hetlage, Mo., 359 S.W.2d 781; Wippler v. Hohn, 341 Mo. 780, 110 S.W.2d 409, 411 [3,4]; Dallas v. City of St. Louis, Mo., 338 S.W.2d 39, 40[1], Statutory provisions for planning and zoning are expressed to be for the purpose of promoting the public health, safety, morals, comfort and general welfare. See §§ 64.040 and 64.090 relating to counties of the first class, and §§ 89.020 and 89.030 relating to cities, towns and villages. The planning and zoning powers which are vested in charter counties directly by the Constitution are of similar character and in some respects such constitutional powers take precedence over the legislative grants. See Casper v. Hetlage, supra, and cases therein cited.

7" The' essential claim of the city is that it /has the right to designate the location of the disposal plant in St. Louis County by reason of §§ 71.680 and 79.380, authorizing it to acquire a sewage treatment plant beyond the city limits and giving the city the right to condemn land for this purpose./ Tn this regard it relies primarily upon State ex rel. St. Louis Union Trust Co. v. Ferriss, Mo., 304 S.W.2d 896, and State ex rel. Askew v. Kopp, Mo., 330 S.W.2d 882. In the Ferriss case the controversy was between the zoning authority of the City of Ladue and the power of a board of education to select school sites and condemn land for that purpose. The decision in the Ferriss case did not turn" solely uporT the ~ exislenc^oTthe right of condemnation because the statutes-expressly p'rovi3e3~THair the board of education should select and locate sites for schoolhouses, which sites could be acquired by condemnation. ~ 'TheV/ statutes upon which the City of Manchester relies do not expressly bestow upon it the right to select the precise location of a sewage disposal plant. ^The grant is general; it may be within or without the city limits. Furthermore, the nature of schools and the duties of school board members are such as justify resting in them the right to locate schools where the school population and the public interest will best be served. The state highway commission is also specifically granted the right to locate and relocate state highways. Art. IV, § 29, of the Constitution. 7ln the Kopp case there was no controversy' between the City of Raytown and Jackson County. Raytown had sought and obtained the approval of Jackson County for the location of sewage lagoons and oxidation basins?) The objectors werp/iand-owners who lived in the vicinityj/A~foot-nSterttrthe opinion at 330 S.W.2d 887 points out that Jackson County does not operate under a special county charter authorized by § 18(c) of Art. VI of the Constitution which specifically confers upon charter counties planning'and zoning powers. This and the circumstances under which the litigation arose renders the Kopp case not controlling in this case.

“Briefly, eminent domain takes property because it is useful to the public, while the police power regulates the use of property or impairs rights in property because the free exercise of these rights is detrimental to public interest; * * 29 C.J.S. Eminent Domain § 6, p. 784. See also State ex rel. Penrose Inv. Co. v. McKelvey, 301 Mo. 1, 256 S.W. 474[2]; State ex rel. Oliver Cadillac Co. v. Christopher, 317 Mo. 1179, 298 S.W. 720[1]; and 18 Am.Jur., Eminent Domain, § 11, p. 639. As noted above, zoning is a regulation of the use of property referable to the police power. See also 29 C.J.S. Eminent Domain §7, p. 789.

Ordinarily, the grantee of the power of eminent domain may determine the location of the facility or improvement and the land to be taken for it^ but the_power of selecting a location may be restricted by statufe'or an ordinance having the force and effect oí a~~statutory provision. 29 C.J.S. EmineñFTJomain §~9l7~ppT 886-888; In re Kansas City Ordinance No. 39946, 298 Mo. 569, 252 S.W. 404, 28 A.L.R. 295; State ex rel. State Highway Commission of Missouri v. Shultz, 241 Mo.App. 570, 243 S.W.2d 808; State ex rel. N. W. Electric Power Coop., Inc. v. Waggoner, Mo.App., 319 S.W.2d 930, 934[3]; Tudor v. Chicago & S. S. R. T. R. Co., Ill., 27 N.E. 915, 916.

Contrary to the city’s contention, the grant of municipal powers to charter counties under § 18 of Art. VI is meaningful and vests rights which cannot be taken away or impaired by the general assembly, one of which is to exercise legislative power pertaining to planning and zoning in the part of the county outside of incorporated cities. See Casper v. Hetlage, Mo., 359 S.W.2d 781; State on Information of Dalton, ex rel. Shepley v. Gamble, 365 Mo. 215, 280 S.W.2d 656; State on Information of Dalton v. Metropolitan St. Louis Sewer District, 365 Mo. 1, 275 S.W.2d 225; and Schmoll v. Housing Authority of St. Louis County, Mo., 321 S.W.2d 494. Casper v. Hetlage decided that zoning ordinances of St. Louis County in the respects there in issue took precedence over § 64.140 pertaining to zoning in class one counties.

The city has not called our attention to any statutes which by their terms expressly confer on the. city a superior right to locate the facility regardless of the zoning ordinances of St. Louis County) Never-theleis, they say the power to do so clearly appears from the public policy of the state as expressed in Chapter 64, RSMo 1959, V. A.M.S., pertaining to zoning and planning in class one counties and §§ 71.680 and 79.-380 concerning the power of class four cities to condemn county lands for sewage disposal. On the other hand, the county points out that by an amendment made in 1945 § 64.050 provides: “If a development or public improvement is proposed to be located in the unincorporated territory of the county by any municipality, county, public board or commission, the disapproval or recommendations of the county planning commission may be overruled by the county court, which shall certify its reason therefor to the planning commission.” Further exploration of public policy is unnecessary on the limited question before us.

The zoning powers vested in charter counties by the Constitution are in the public interest and designed to promote the public health and welfare the same as zoning provisions of cities. Under the legislative grant, the City of Manchester may construct the sewage disposal plant and related facilities wittun or without its city limits. It is unlikely, however, that the city would undertake to construct such a facility in a residential portion of its own city. Experience shows that a plant like that can be highly offensive. See Flanigan v. City of Springfield, Mo., 360 S.W.2d 700. Nor has /any justification been shown for permitting the sewage disposal plant to be located in a residential district of St. Louis County which, by reason of population density, the state Constitution has granted certain municipal powers including that of zoning the parts of the county outside of incorporated cities. We need not determine, however, whether the county or the city “occupies a superior position in the governmental hierarchy,” (Aviation Services v. Board of Adjustment, 20 N.J. 275, 119 A.2d 761, 765) because the county ordinances and the statutes may reasonably be harmonized and permitted to stand.

We conclude that the zoning ordinances of St. Louis County are a lawful restriction upon the location of the sewage disposal plant and related facilities which the City_of — Manchester proposes to construct. By this interpretation, effect is given to the constitutional provisions, the statutes, and the ordinances of St, Louis County in their respective fields and in proper proportion. The statutes upon which the city depends do not purport to give the citythe right to~ggl5ut-the exacTTocation m St. Louis County, and the public interest is best served in requiring it to be donejn accofdance~with the~~zürrmgtJáws! There are approximately 100 incorporated cities in St. Louis County. To permit each of them or any considerable number of them to ignore valid provisions of the zoning ordinances would tend to nullify and destroy the municipal powers vested in charter counties by the Constitution. In City of Richmond v. Board of Supervisors, 199 Va. 679, 101 S.E.2d 641, it was held that statutes granting the City of Richmond the right to establish a jail beyond its corporate limits did not authorize the city to choose a location in violation of the county’s zoning laws.

The judgment is reversed and the cause remanded with directions to grant the injunction prayed for in plaintiffs’ first amended petition and for such other and further proceedings and relief as may be justified in the circumstances not inconsistent with this opinion.-

All concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Dan Westley GRAY, Appellant.
    No. 49313.
    Supreme Court of Missouri, Division No. 1.
    Oct. 8, 1962.

      Welker & Young, Portageville, for appellant.
    Thomas F. Eagleton, Atty. Gen., Richard R. Nacy, Jr., Special Asst. Atty. Gen., Jefferson City, for respondent.
   HOUSER, Commissioner.

A jury convicted Dan Westley Gray of murder in the second degree and fixed his punishment at 60 years, on an information charging him with the first degree murder of Cleatus Leo Phillips on September 12, 1960 in New Madrid County. Gray’s attorneys filed a motion for new trial, which was overruled. Gray appealed but filed no brief, so we review all the specifications of error properly preserved in his motion for new trial, Sup.Ct. Rule 27.20, V.A.M.R., and the portions of the record required by Sup.Ct. Rule 28.02, V.A.M.R.

Although the sufficiency of the evidence to make a submissible case is not challenged, we briefly review the State’s evidence, which tended to show these facts: Sheriff Ramsey had a warrant for the arrest of defendant. Informed that defendant was at the home of his brother Bobby Gray, the sheriff and Cleatus Phillips, a deputy sheriff, went to the brother’s home near Marston, traveling in a pickup truck. The sheriff went to the front door, Phillips to the back of the house. Phillips called out that he saw defendant inside the house. The sheriff called on defendant to come out. Defendant said “Wait until I get a shirt on.” Time passed and defendant did not come out. The sheriff opened the front door, walked into the front room of the house, and heard a sound like a pump shotgun being pumped, in a rear room. Phillips kicked the back door open, and as Phillips was entering the house defendant shot Phillips in the head with a shotgun at close range, killing him instantly. The sheriff ran out of the house, ordered defendant to come out and throw down his gun, and fired into the air twice to scare him out. Defendant left by the rear door, came around the house, encountered the sheriff at the corner of the front of the house, and shot the sheriff, the main load striking the sheriff in the left shoulder and chin, knocking out a tooth and a B-B blinding him in one eye. The sheriff ran around the house, saw Phillips’ dead body lying on the ground, ran in the direction of the truck, encountered defendant, and the two men exchanged shots simultaneously, some of the shots striking the sheriff’s arm. The sheriff ran into a cornfield. Defendant, with a shotgun in his hand, followed the sheriff. The sheriff took two more shots, emptying his pistol, ran toward a road, collapsed. Defendant approached the sheriff, who was weak from loss of blood and down on his hands and knees. The sheriff asked him not to shoot him. At defendant’s instruction the sheriff threw his gun out on the road. Defendant then fetched the truck, loaded the sheriff and the dead man in the back of the truck, and drove around through the woods and over the back roads, first starting to town to take the sheriff to a doctor, later changing his mind. Defendant took $61 from the sheriff, rolled the deceased over enough to remove his billfold from his hip pocket, and extracted the folding money, saying he wanted “money to get an airplane ticket to get away on.” Defendant asked the sheriff for two days’ time before informing on him, suggested that the sheriff say "it was a nigger” ; that if the sheriff “liked his children” he had “better say it’s a nigger”; that if the sheriff would give defendant a chance to get away he would send him $10,000 within two months’ time “to fix [his] face up as good as new.” Defendant finally turned the truck over to the sheriff, who drove around until he found someone to take him to a doctor. Three days later defendant was taken into custody in the vicinity by the highway patrol. The defense was self-defense.

We reproduce the first seven assignments of error in Gray’s motion for new trial:

“(1) The verdict in said cause is against the evidence, the weight of the evidence, and against the law under the evidence.

“(2) The verdict was for the wrong party.

“(3) The Court erred in admitting incompetent, irrelevant and immaterial evidence offered on behalf of the State, particularly with reference to the testimony of Bob Gray, father of the Defendant.

“(4) The Court erred in rejecting competent, relevant, and material evidence offered for and on behalf of the Defendant.

“(5) The Court erred in giving and reading to the jury instructions given at the request of the State of Missouri.

“(6) The Court erred in giving and reading to the jury instructions given and read of his own motion.

“(7) The Court erred in refusing to give and read to the jury instructions offered and requested by the Defendant.”

None of the foregoing assignments is sufficiently specific to present anything for appellate review. Sup.Ct. Rule 27.20, V.A.M.R.; State v. Howard, Mo.Sup., 360 S.W.2d 718, handed down concurrently herewith, and cases cited; State v. Romprey, Mo.Sup., 339 S.W.2d 746; State v. Russell, Mo.Sup., 324 S.W.2d 727; State v. Stumph, Mo.Sup., 349 S.W.2d 954.

Assignment No. 8: “The verdict of the jury is excessive and the result of bias and prejudice on the part of the jury in favor of the State and against the Defendant.” Section 559.030, RSMo 1959, V.A.M.S., provides that the punishment for conviction of murder in the second degree is imprisonment in the penitentiary not less than ten years. Any punishment within the range of 10 years to life is sufficient under this statute. State v. Robinson, Mo.Sup., 177 S.W.2d 499. The motion suggests no reason why the verdict is excessive. It was within the province of the jury to fix the length of the term, State v. Tiedt, 360 Mo. 594, 229 S.W.2d 582, subject to the trial court’s discretionary power to reduce the punishment so assessed. State v. Strong, Mo.Sup., 339 S.W.2d 759. The trial court has a “far better opportunity to pass on all the facts, having seen and heard the parties and witnesses and knowing the trial atmosphere.” State v. Rizor, 353 Mo. 368, 182 S.W.2d 525, 529. The question of exces-siveness was presented to the trial court in the motion for new trial. The trial court overruled the motion, thereby determining the issue of excessiveness against defendant. When the punishment assessed is within the range prescribed by statute, it cannot be adjudged excessive by an appellate court. State v. Wolfe, Mo.Sup., en banc, 343 S.W.2d 10, and cases cited l. c. 16. Defendant’s undeveloped allegation that the verdict is the result of bias and prejudice is too general to merit consideration. State v. Minor, Mo.Sup., 282 S.W.2d 545.

Assignment No. 9: “The Court erred in failing and refusing to sustain the Defendant’s Motion in behalf of the Defendant to deny Hal E. Hunter the right to further proceed as Assistant Prosecuting Attorney to prosecute the case on behalf of the State for the reason that at the time of the filing of the information herein the said Hal E. Hunter was acting as Assistant Prosecuting Attorney and was also Clerk of the Magistrate Court in which the preliminary hearing was held, and that as such he was debarred by the statutes of the State of Missouri to act as Prosecuting Attorney or Assistant Prosecuting Attorney.” Hal E. Hunter, Jr., signed and filed the instant information as assistant prosecuting attorney. On that date Hunter also held the office of clerk of the magistrate court in the same county. Section 476.290, RSMo 1959, V.A.M.S., provides that no clerk while he continues to act as such shall plead, practice or act as counselor or attorney in any court within the county for which he is such clerk, in his own name or in the name of any other person, under any pretense whatever, and § 476.300 provides that any suit commenced or paper filed in violation of the preceding section shall, on motion, he dismissed or stricken from the record. The week before the instant trial Hunter resigned as clerk of the magistrate court. On the day of trial he appeared on behalf of the state in his capacity of assistant prosecuting attorney. After the jury was empaneled and two witnesses had testified counsel for defendant filed a written motion to deny Hunter the right to further appear in the cause on behalf of the state. The court overruled the motion to bar Hunter from further proceeding on behalf of the state in the prosecution of the case. The action of the court was proper and must be sustained. At the time the motion was filed Hunter was not continuing to act as clerk of the magistrate court. At that time Hunter was not prohibited from further proceeding in the case as assistant prosecuting attorney. Following the overruling of the motion to bar Hunter from further prosecuting the case, defendant’s counsel filed an oral motion to strike and quash the information, but the point that the information was insufficient for this same reason was not preserved in the motion for new trial, and therefore is not before us on this review.

Assignments Nos. 10 and 15: “(10) Defendant, in addition to other objections to Instruction No. 1 given for and on behalf of the State and at the request of the State, states that the Court erred for the reason that said instruction limits definitions ‘deliberately’, ‘wilfully’, ‘premeditat-edly’ and ‘with malice aforethought’, to Instruction No. 1. Said definitions are limited and made a part of Instruction No. 1 only.’’ “(15) The main Instruction, to-wit: No. 1, given by the Court at the request of the State, confines definitions of the words, ‘wil-fully’, ‘deliberately’, ‘premeditatedly’, ‘malice’, and ‘malice aforethought’, to the Court’s Instructions regarding murder in the first or second degree.” If we understand correctly, the complaint is that Instruction No. 1 confines and limits the definitions of the quoted words to that instruction, which relates to murder in the first and second degree. Although the motion does not say so in terms, we take it that the inferential complaint is that the terms “deliberately”, “wilfully,” “premeditatedly,” “malice,” and “malice aforethought,” wherever else they occur in the instructions, were given to the jury without definition. None of these terms is to be found in any other instruction, however, except the term “malice,” which occurs in Instruction F on the subject of manslaughter. Although the term “malice” is not defined in Instruction F it cannot be said that the jury was uninstructed as to its meaning as used in Instruction F, because the definition of “malice” in Instruction No. 1 is applicable to all of the instructions in the case, for it is preceded by these words: “ ‘Malice’ in its legal sense and as used in these instructions * * (Italics ours.) The jury is obliged to read all of the instructions together, as a whole. State v. Politte, Mo.Sup., 249 S.W.2d 366, 370; State v. Martin, 364 Mo. 258, 260 S.W.2d 536. So read, the term “malice” occurring in Instruction F was properly defined.

Assignment No. 11: “The verdict of the jury was arrived at as a quotient verdict, that is, the jurors each stated a particular term of service and the total of the terms so designated were divided by twelve, and that is the fashion in which the verdict of sixty years was arrived at.” The unsupported allegation that the verdict is a quotient verdict, made without substantiation by affidavit or other evidence, fails under the rule that unverified allegations of a motion for new trial as to matters not shown by the record do not prove themselves. State v. Smart, Mo.Sup., 328 S.W.2d 569, 576, and cases cited.

Assignment No. 12: “The Defendant has discovered additional and newly discovered evidence of witnesses who were in the jail at the time of the alleged beating of Defendant Gray and will on the next trial of this cause testify that they saw and heard the Defendant beaten by the deceased Cletus Phillips.” In order to secure a new trial on the ground of newly discovered evidence all six of the factors referred to in State v. Brotherton, Mo.Sup., 266 S.W.2d 712, must be shown. Appellant complied with none of these requirements.

Assignment No. 13: “The Court erred in failing and refusing to give to the jury not only all of the instructions offered and requested by the Defendant, but particularly Instruction G, which defined the essential elements of manslaughter.” Although this point fails to comply with Sup. Ct.Rule 27.20, we will consider whether the subject of manslaughter was properly instructed upon. Instruction F directed the jury that they could not find defendant guilty of murder in the first or second degree if the killing was done in a violent passion suddenly aroused, but in that event if the jury further found that the killing was not done in self-defense they should find him guilty of manslaughter. Instruction F is a proper instruction on manslaughter under the statutory provision that “Every killing of a human being by the act, procurement * * * of another, not herein declared to be murder or excusable or justifiable manslaughter, shall be deemed manslaughter.” A sufficient instruction on the subj ect of manslaughter having been given, there was no error in refusing defendant’s Instruction No. G, which directed a verdict of manslaughter upon a finding of intentional shooting without premeditation or malice, unless there should be an acquittal on the ground of self-defense.

Assignment No. 14: “The Court failed to supplement Instruction F given by the Court, for the reason that among other things, the Instruction refers to ‘that such shooting and killing were not done in self defense as hereinafter explained you will find him guilty of manslaughter.’ There was no Instruction thereinafter given, other than the refused Instruction G.” This point is without merit. Instruction F needed no further “supplementing” than that provided by given Instruction No. B, which fully and completely covered the defense of self-defense. The fact that the word “hereinafter” in Instruction F should have read “hereinbefore” is a trifling discrepancy cured by the Statute of Jeofails, § 545.030, subd. 1(18).

Assignment No. 16: “That the Instructions given by the Court are confusing, ununderstandable, and contradictory, to the jury.” This point is so general that it preserves nothing for appellate review. Out of an abundance of caution, however, we have reviewed the instructions critically, and find them to be conventional and unexceptional in form and substance, understandable, consistent, and fully adequate to cover all of the elements of the crime.

A minute examination of this record reveals no reversible error. Appellant, represented by two capable lawyers, was accorded a fair and impartial trial. The verdict, finding defendant guilty of murder in the second degree and assessing his punishment “at 60 years” was sufficient to support the judgment and sentence confining him in the custody of the department of corrections in an institution designated by the department in accordance with law for a period of sixty years. The omission of the words “in the penitentiary” does not affect the meaning or validity of the verdict. State v. Allen, Mo.Sup., 343 S.W.2d 63; State v. Kenton, Mo.Sup., 298 S.W.2d 433; State v. Herman, Mo.Sup., 280 S.W.2d 44. The punishment is authorized by law, Section 559.030, RSMo 1959, V.A.M.S.; allocution was granted; the judgment is proper in form and substance, and the sentence was duly imposed. The judgment is affirmed.

COIL and HOLMAN, CC, concur.

PER CURIAM.

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

All of the Judges concur.