author: LEEDY, Judge.

text:
    STATE of Missouri, Respondent, v. Jesse Glenn FRALEY, Appellant.
    No. 49408.
    Supreme Court of Missouri, Division No. 2.
    July 8, 1963.

      Albert Felderbaum, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Dale Reesman, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   LEEDY, Judge.

Jesse Glenn Fraley appeals from a conviction for obtaining money with the intent to cheat and defraud by means of a bogus check, in violation of § 561.450. At a hearing held out of the presence of the jury prior to the submission of the case, the trial judge determined (and entered a finding so declaring) that, as alleged in the information, defendant had been previously convicted, sentenced to five years’ imprisonment, and incarcerated in the Missouri Penitentiary for the felony of robbery in the first degree by means of a dangerous and deadly weapon (§ 556.280), and upon the coming in of the verdict, the trial judge, as further authorized by subd. 2 of said section, assessed the punishment which he fixed at the maximum prescribed for a violation of § 561.450, that is, imprisonment for a term of seven years. Judgment and sentence went accordingly, and this appeal followed.

Defendant was represented by court-appointed counsel who filed a timely motion for a new trial. There is no brief on behalf of defendant as appellant, in the absence of which we consider such of the assignments of the motion for a new trial as are sufficient to comply with the requirements of Rule 27.20(a), V.A.M.R., respecting detail and particularity of statement of the grounds or causes therefor. Among the assignments of the motion is one complaining of the failure of the court to direct a verdict of acquittal at the close of the entire case “for the reason that the state failed to prove a cause of action against defendant as alleged in the indictment or information.” It is not certain what is meant by this reference to the “indictment” (which had been supplanted by an information filed by leave in lieu of it) nor by the use of the term “cause of action” (as applied to a criminal case). We conclude these expressions were used inadvertently, and that if the assignment is meant as a challenge of the sufficiency of the evidence to support the verdict (and we so construe it, rather than as attempting to allege, for example, that there was a variance between the charge and the proof), it must be disallowed, as the résumé of the relevant facts set out below will demonstrate.

The check in question, bearing date of “Jan. 6, 1961,” was drawn on “American National Bank in St. Louis, Mo.,” payable to the order of Harold E. Jordan for the sum of Eighty-seven & 82/100 Dollars ($87.82), and purported to have been drawn by “Shaw Marble & Tile Company” (4179 Meramec Street), and immediately below what we take to have been the printed name of said company appear the signatures of “J. P. Thorpe” as “Ass’t Sec’y,” and “Frank Beyler” as “Manager.”

Ronald Bernard Alfaro testified that on the date in question, Jan. 10, 1961, he was employed as a teller by Southern Commercial Bank in the City of St. Louis; that in the late afternoon of that day a car pulled up to a drive-in window of the bank at which he was on duty, and one of the two men in the car (positively identified by him at the trial as being the defendant) presented the check (State’s Exhibit “1”) and asked the witness if he would cash it. Knowing that there was an account in the bank in the name of Harold E. Jordan, witness inquired if he (defendant) had an account with the bank, to which inquiry defendant answered in the affirmative. The witness then furnished defendant a pencil with which the latter then and there endorsed the check in the name of Harold E. Jordan, the payee and the witness gave defendant the full amount of the check, $87.82. Witness noted on the check the license number of the car, and it was by this means a few days later, when the check was returned unpaid, that defendant was traced and apprehended.

Albert H. Coerver, Vice President and General Manager of Shaw Marble & Tile Company, testified that the check had been made out on one of the company’s regular, printed blank forms, and bore the number “3899A.” There was no showing with respect to how or when it got out of the company’s possession nor when it was discovered to be missing, except inferentially from the fact that on Jan. 11, 1961 the company directed the bank to stop payment on it. This witness further testified that the company had no employe by the name of Harold E. Jordan, nor did it do business with anyone of that name; that the company did not issue the check, and had no one by the name of either Beyler or Thorpe, nor did either the witness or the company authorize anyone to sign these names on the check.

Orville Ohl, a Vice President of American National Bank, testified that Shaw Marble & Tile Company had had an account with the bank for thirty-eight years, and that State’s Exhibit “1” was on one of that company’s blanks; that he was familiar with the authorized signatures on the Shaw Company’s account, and that those on the check in question were not “Shaw Marble signatures”; that when the check was received at the bank it was returned not only because payment had been stopped, but also because the “signatures didn’t agree.”

As stated, the license number of the car (a ’57 Chevrolet station wagon) was jotted down on the check by the teller as the car drove away from the drive-in window. By this means ownership of the car was traced to a Mrs. Ola Drake, who, when called as a state’s witness, testified that although she owned the car, she did not have it in her possession on the date in question, January 10, 1961. In this connection, two members of the St. Louis Police Department testified that they saw defendant in the jail at Hillsboro in January, 1961, and that he there stated he had had possession of Mrs. Drake’s station wagon; one, Detective Sanders, said defendant admitted having the car “about four days, January 7, 8, 9, 10, and 1 think 11th, five days,” and the other (Detective Corporal Murphy) quoted defendant as saying that he had it in his possession “between the 7th and 10th.” He denied, however, knowing anything about 'the check.

Defendant did not testify, but his mother and father were called as the sole witnesses in his behalf, and they testified to facts which, if believed, would have exonerated defendant on the premise that the teller’s identification of him was entirely erroneous.

The teller paid out $87.82 of the bank’s money to defendant on what, by any definition, was a bogus check, and no part of said sum was ever recovered. An intent to cheat and defraud the bank was inplicit in the very nature of the transaction as we have stated it. The question of defendant’s guilt was clearly one for the jury, and the court did not err in refusing to direct a verdict of acquittal.

Complaint is made of the action of the court in permitting the state (immediately following the ruling on defendant’s aforesaid motion for a directed verdict of acquittal, and before any evidence had been introduced on behalf of defendant) to “reopen its case for the purpose of introducing State’s Exhibit No. 1, the check, into evidence, and giving the jury an opportunity to examine it.” Upon such request being made, the following occurred:

“THE COURT: All right, I will permit you to reopen for that purpose. I think the check is in evidence.
“MR. FELBERBAUM: Defendant objects to it.
“THE COURT: All right, the objection will be overruled.”

It will be noted, first, that that which purports to be an objection did not come until belatedly, and after the court had already ruled the state’s request; and, secondly, that no ground or reason was given in support of the so-called objection either at that time, or in the motion for a new trial. Obviously, this assignment presents nothing for review.

There is no substance in the complaint that two witnesses were permitted “to testify for the state, although their names were not endorsed on the information, to-wit, the vice-president of the American National Bank and Cpl. John Murphy.” As to the witness Murphy, the record shows that the information bore the endorsement of his name at the very time it was filed. As to “the vice-president of the American National Bank” (and not designated by name in the motion for new trial), the record shows that five days before the trial, the circuit attorney, by leave of court, formally “endorses the following named persons [among others] as witnesses on the part of the State: * * * Cashier, American National Bank, 6637 S. Kingshighway,” with due notice thereof to defendant's attorney. Endorsement of a witness only by the title of the office he holds in an organization, and not by name, is irregular and out of the norm, but inasmuch as defendant had not complained of the omission nor sought to secure identification of the proposed witness by name, and inasmuch as the representative of the bank who did testify (Mr. Ohl) was an officer of the bank who occupied another position (vice president) and not that of cashier, but one who would likely be expected to have as much knowledge of the facts as a fellow officer, we see no abuse of discretion in permitting him to testify.

We have very carefully searched the record of the closing argument of the assistant circuit attorney and fail to find therein either the language attributed to him (or anything approaching it) or the offending failure of the trial court to reprimand or declare a mistrial therefor, as alleged in paragraph 11 of the motion for new trial, viz:

“11. The Court erred by permitting the Circuit Attorney to commend on the defendant’s failure to testify, in his closing argument, i. e., 'There’s only one man in this Court room who knows’ —then pointing to the defendant, without reprimanding the Circuit Attorney, or declaring a mistrial, the Court knowing that defendant could not answer this accusation.”

Such assignment not only does not prove itself, but it is directly contrary to the record of what transpired.

Similarly, there is absolutely nothing in the record to sustain the defendant’s belief, as alleged in ground 12, that the proceedings at the trial were not accurately reported.

Those matters which the rules require us to examine whether error thereon is assigned or not have been examined, and we find no reversible error therein. Judgment affirmed.

All of the Judges concur.

      . All references to statutes are to RSMo 1959 and V.A.M.S., unless otherwise noted.


source: Caselaw Access Project

author: HOLLINGSWORTH, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Lanny Alfred JACKSON, Jr., Appellant.
    No. 49836.
    Supreme Court of Missouri, Division No. 1.
    July 8, 1963.
    Thomas F. Eagleton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   HOLLINGSWORTH, Judge.

Upon trial by jury in the Circuit Court of Greene County, defendant was found “guilty of attempted burglary as charged in the information” and his punishment was assessed at five years in the penitentiary. The information alleged that defendant “on or the 7th day of April A.D. 1962 at the County of Greene and State of Missouri, did then and there wilfully, unlawfully and feloniously and burglariously attempt to break into and enter a certain dwelling owned by S. A. Honeycutt, the same being used and occupied by Romona Kelly, of Springfield, Missouri, and the said Romona Kelly being in the said dwelling at the time of the attempt to feloniously and burglar-iously break into said dwelling by forcing open a window of said dwelling, with the intent to molest a minor, to-wit: Romona Kelly, age 19 years, by taking improper liberties'- with said minor, a felony; but he, the said Lanny Alfred Jackson, Jr., did then and there fail in the perpetration of said offense, crime and felony by being intercepted and prevented in executing and perpetrating the said offense as aforesaid, * * His motion for new trial was overruled and allocution was granted. Judgment and sentence ensued in conformity with the verdict of the jury.

Although represented by counsel at all pretrial, trial and aftertrial proceedings, including perfection of his appeal to this court, no brief has been filed in defendant’s behalf. We, therefore, review all of the assignments of error validly set forth in the motion for new trial as required by S.Ct. Rule 27.20 and the portions of the record required by S.Ct. Rule 28.02, 4 RSMo 1959, pp. 4923 and 4925, 1 V.A.M.R., pp. 207 and 235.

Assignment No. 2 asserts error in overruling defendant’s motion for directed verdict at the close of all of the evidence, on grounds the state failed to show by competent and substantial evidence defendant’s intent to take “improper liberties with the person of Romona Kelly.” Assignment No. 3 asserts error in the failure of the court to instruct the jury as to the meaning of the words “improper liberties” as used in the main and only instruction hypothesizing the facts necessarily to be found before the jury could return a verdict finding defendant guilty of the offense with which he was charged. The contention in that respect is that such an instruction was necessary for the guidance of the jury in returning their verdict. Consideration of the foregoing assignments requires a statement of the evidence.

At the beginning of the trial, counsel for the state was permitted to read to the jury § 563.160 RSMo 1959, V.A.M.S., in words following: “Any person who in the presence of any minor, shall indulge in any degrading, lewd, immoral or vicious habit or practices; or who shall take indecent or improper liberties with such minor; or who shall publicly expose his or her person to such minor in an obscene or indecent manner; or who shall by language, sign or touching such minor, suggest or refer to any immoral, lewd, lascivious or indecent act, or who shall detain or divert such minor with intent to perpetrate any of the aforesaid acts, shall be considered as annoying or molesting said minor and shall upon conviction be punished by imprisonment in the penitentiary for a period not exceeding five years, or * * etc. The court thereupon declared to the jury that the statute “constitutes a felony under the laws of the State of Missouri.”

Romona Dean Kelly testified in behalf of the state: She was 19 years of age on April 7, 1962, at which time she worked for a publishing company and resided in a third floor apartment at 616 N. Jefferson Avenue, Springfield, Missouri. There were three outside windows in the bedroom and one in the kitchenette, “it is somewhat like a hallway." There is a window on the east (rear) side of the house. Her bedroom windows had stained glass on the lower portion and curtains shielding any view above the stained portion of the glass. No one can see through the bedroom windows. She never undressed in-front of the kitchen window through which she saw the person that night. The kitchen window is covered with a thin curtain through which one could be seen at night. During the evening of that day, April 7, 1962, she visited with her landlady, Mrs. Keele, on the main floor of the apartment house. At about 10:45 p. m., she went directly upstairs from Mrs. Keele’s apartment to her apartment, got ready for bed, removed her clothing and put on her night dress in the bedroom and, as she stood in front of a mirror, started to roll up her hair. At that time she heard a noise, as if a screen were falling to the second floor roof. She looked around the corner from the bedroom and saw the reflection of a person outside the kitchenette window. She ran downstairs to tell Mrs. Keele, who called the police. Harold Wilson, who with his wife lived in the basement apartment, and Miss Kelly went outside to investigate. A fire escape ladder extended downward from that window. Colored people lived in a house located to the rear of and across an alley from and fronted toward Miss Kelly’s apartment.

Harold Wilson testified in behalf of the state: His wife heard the commotion and called him. He ran through Mrs. Keele’s apartment to the outside and saw a negro man on the fire escape. The man came down the fire escape ladder, thence down from the roof by means of a ladder, which defendant or some other person had recently placed on the north side of the rear of the apartment house. Wilson caught that man, the man got loose, Wilson chased him and saw him enter the rear of a house on Tampa Street, a block or more from the apartment house operated by Mrs. Keele. The police came, Wilson took them to the house he saw the man enter. They there arrested defendant. He was the man Wilson had seen come down the fire escape. Miss Kelly’s kitchen window light was on and there was a neon light near by; the place was well lighted.

John E. Smith testified: He was on police duty that night and received a call to go to the apartment house where Miss Kelly lived. He shortly thereafter arrested defendant at the house to which he was told defendant had gone. Defendant, when arrested, was breathing heavily and sweat was standing out on his forehead. Defendant, questioned by Smith, denied he knew anything about the matter. He said he had been at the La Petite Bar and that, after leaving there, he had walked around.

Charles Oheim testified: He is and for more than three years had been a detective on the police force. As a part of his duties, he talked with defendant on the morning of April 8, 1962.

“Q. And, did you ask him what he intended to do after he got in there ?
“A. Yes, I did. He said he didn’t know whether he intended to have sexual relations with the girl that lived there or whether he intended to rob her; he said he didn’t know who lived there, although he knew white people lived there.
“Q. He said he did know that white people- lived there ?
“A. Yes.
“Q. Did he have anything else to say concerning the matter ?
“A. Not that I recall, right now.”

Thereafter, as Detective Oheim testified, he, with the knowledge, consent and cooperation of Miss Kelly, inspected the premises in the rear of where she lived. He could clearly see her at any place in the kitchen through the kitchen window. He then went to the house where defendant resided, immediately in the rear of the apartment building in which Miss Kelly lived. He could and did there see Miss Kelly through the sheer curtain that covered the kitchen window, as she walked to the back of that room.

On cross-examination, Oheim testified:
“Q. Well, what did he (defendant) say he was doing up there? * * *
“A. He refused to say what he was doing up there.
* * * * * *
“Q. Well, what’s all this sex talk, then? Where did that come in, who said that?
“A. Well, I did. I questioned him regarding that.
“Q. Those were your questions, then, and not what he said. You asked him if he was up there to have sexual intercourse, did you?
“A. Yes, I did.
"Q. But he didn't say he was up there to have it, did he?
“A. No. He didn’t deny it, though.”

Recalled, Miss Kelly further testified: The lights of her apartment were on while she visited her landlady that evening. When she returned to her apartment, she passed in front of the kitchen window through which she could be seen from the outside. She then wore street clothing and did not take off or put on any clothing in front of the kitchen window. As she, standing by the mirror in her bedroom, rolled up her hair, a portion of a person could be seen through the kitchen window by looking “just right on the corner of the doorway that enters [her] bedroom * * if they looked around the door.” When she heard the screen fall, she was in front of her mirror and “just looked around the corner,” after possibly taking one step to look around.

The evidence in behalf of defendant was, as follows: William Goodenkoff, who operated the La Petite Cocktail Lounge, on the night of April 7,1962, testified: Defendant, who was formerly employed by him and was one of the best musicians in Springfield, came into the lounge after nine o’clock that night, asked if he could join the band, which is a privilege generally extended to former employees, such as defendant. Goo-denkoff permitted'him to do so. After defendant had played two numbers . and-had sung a song, Goodenkoff noticed that he was too intoxicated to play, asked him to leave and, defendant being unsteady on his feét, Goodenkoff escorted him out. .-It was then after ten o’clock.

Defendant testified: He was 31 years of age, born and reared in Tennessee, attended school to the 11th grade, went into military service, served almost four years, became a member of the army band, was honorably discharged and had been intermittently employed, both as a musician and at other jobs since then. He had lived at Alberta Harris’ rooming house (facing the rear of Mrs. Keele’s apartment house) for about a year when charged with this offense. His room was on the first floor of the rooming house.

During the day and evening of April 7, 1962, he joined a party at Alberta Harris’ house, where he had drunk beer, gin and whiskey. About 10 or 10:30 o’clock that evening, he decided to go and did go to the La Petite Bar, where he was permitted to join the band. He was too drunk to play and was escorted out of the place. The next thing he remembered was when he was riding in a police car.

On the next morning he was questioned by Detective Oheim:

“Q. What did you tell him?
“A. Well, he asked me, says, ‘What were you doing up there ?’ I told him, I says, T don’t even remember being up there,’ I says, T was drunk, out of my head.’ And he says, ‘I know what you was up there for,’ he said I was trying to get in there and get a white girl. I says, ‘No, I wasn’t.’ And he says, ‘Would you sign a statement?’ And I says, ‘No, I won’t sign a statement or anything.’
“Q. Did you tell him anything else?
“A. No; I didn’t tell him anything else.
“Q. Did you hear him testify here today about you saying you were trying to get in there?
“A. Yes, he said that I said I was trying to get in there, but I didn’t; I didn’t say anything like that.
“Q. Do you remember being over to Romona Kelly’s that night?
“A. No, I don’t.
“Q. Do you remember being up on her fire escape?
“A. No, I don’t.
“Q. Have you ever seen Romona Kelly before?
“A. No, I haven’t.”

Defendant later recalled that the first time he had ever seen her was at the preliminary hearing.

The brief filed by the Attorney General states that the fundamental issue in the case is: “Was there in fact evidence sufficient to support the jury’s finding that [defendant] intended to enter Romona Kelly’s apartment and take improper liberties with her person?” Actually, however, the defendant is not charged with an intent to take improper liberties with her person. The information charges only that he intended to molest her, a minor, by taking improper liberties with her, which the information further characterized as a “felony”. Likewise, Instruction No. 1A, the principal (and only) instruction submitting the issue of defendant’s guilt as charged in the information, merely hypothesized a finding of an attempted burglarious breaking and entering of Miss Kelly’s apartment with the felonious intent to “molest the said Romona Kelly * * * by taking improper liberties with said minor.” In other words, the information does not charge nor does the submission instruction require a finding that the alleged intended molestation of Miss Kelly consisted of taking improper liberties with her person. And, of course, inasmuch as the alleged burglarious breaking and entry charged against defendant was admittedly interrupted, we think it clear that even though the evidence would justify a finding that a breaking and entrance was attempted with an intent on the part of defendant to commit “some felony or to steal therein,” there is neither charge nor proof that the alleged intent to molest Miss Kelly by the mere taking of improper liberties with her would necessarily constitute a felony within the meaning of '§ 563.160, defining the molestation of a minor as therein denounced.

The well-written brief filed in behalf of the Attorney General concedes that “[w]hile it is true a general criminal intent will not suffice in this case, and that the State must show a specific intent on [defendant’s] part to take improper liberties with Miss Kelly, it is also true that such intent can be inferred from the circumstances.” That concession still begs the question, as we shall attempt to demonstrate.

There are many cases wherein burglary is charged by alleging breaking and entry with intent to commit “rape”, “robbery”, “larceny” (stealing), “murder”, etc.; and the informations and instructions submitting those cases by the mere use of the word “rape”, “robbery”, “larceny”, “murder”, etc., are held to constitute an adequate description of the “felony” intended to be committed. Those rulings are correct and sound because those words, in and of themselves, sufficiently designate the felony intended to be committed. The Attorney General says, however, that the charge here made in the language of the statute and submitted in that language is sufficient, citing State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765, a portion of which reads as follows, loc. cit. 767: “It is, of course, true that the defendant in a criminal cause has a constitutional right to demand the nature and cause of the accusation against him, and a criminal statute must be sufficiently clear that there can be no doubt as to when such statute is being violated. But we think the statute in question is sufficiently clear and definite in its terms and prohibitions. And it is our view that the information states an offense under the statute.” But, the sentence appearing immediately before the quoted portion of the opinion must be read in connection therewith. That sentence reads: “The instant information charges that on April 17, 1951, in the presence of the named seven year old minor (prosecutrix) defendant took indecent and improper liberties with said minor by exposing to her his private parts and having her rub the same with her hand and did thus annoy and molest said minor, contrary to statute.” To the same effect are the in-formations (and, when considered, the instructions) in numerous other cases involving molestation of minors, as defined by § 563.160. See State v. Randall, Mo., 248 S.W.2d 860, 862; State v. Schubkegel, Mo., 261 S.W.2d 933; State v. McBrayer, Mo., 269 S.W.2d 756, 757; State v. Martin, Mo., 275 S.W.2d 336; State v. Daegele, Mo., 302 S.W.2d 20, 26 [16-18] [19-21]; State v. Mathews, Mo., 328 S.W.2d 642, 644-645.

We have been cited to no case, nor have we found one, involving an attempted bur-glarious breaking and entry of premises with intent to commit any of the offenses denounced under the so-called molestation-of-a-minor statute (§ 563.160). In such cases, it is obvious, however, that ordinarily there could be neither charge nor proof of the precise means intended to accomplish molestation of a minor within the purview of the statute, other than, of course, to allege and prove that the “improper liberties” intended to be taken with such minor were “improper”, followed by a generalized description of the lewd conduct denounced by the statute. To permit the conviction of an accused of an intent to molest a minor by means of “improper liberties” without so limiting the meaning of the term “improper liberties” would, as we believe, subject him to conviction of an offense not denounced by the statute. “Molestation” may and often does mean misconduct other than that denounced by § 563.160. See “molestation”, Webster’s 3rd New International Dictionary, p. 1455. So also may, and often does, the phrase “improper liberties” mean misconduct other than that denounced by the statute. See “liberty”, same Dictionary, p. 1303, note 4. For illustration, jurors not instructed as to the limited connotations of the statute could and, under the circumstances here shown, probably would find defendant guilty of molesting Miss Kelly by taking “improper liberties” with her, even though they actually made no determination whatever as to the purpose with which he attempted to break and enter her apartment. Indeed, a jury, not advised of the nature and meaning of the improper liberties contemplated under § 563.160, could well have found under Instruction No. 1A (submitting the issue of defendant’s guilt of molesting Miss Kelly with intent to take improper liberties with her) that the “improper liberties” therein alleged included an intent to rob or to steal from her; or, possibly, an intent to seek no more than social intercourse with her. Yet, such a finding would be wholly beyond the felony defined in said § 563.160, upon which the prosecution was predicated.

Both the Attorney General and counsel for defendant tacitly agree that the guilt of defendant, as charged in the information, must be determined upon a finding of whether, in fact, the evidence was sufficient to support a finding that defendant intended to enter Miss Kelly’s apartment with an intent to take improper lewd or lascivious liberties with her person. The jury, clearly, was not required to so find.

S.Ct. Rule 26.02 specifically requires : “(6) In all criminal cases the court, whether or not it shall have been requested so to do by either party, must instruct the jury in writing upon all questions of law necessary for their guidance in returning their verdict which shall include whenever necessary the subjects of good character and reasonable doubt. In all felony cases failure so to instruct shall be good cause for setting aside a verdict of guilty by the jury and granting a new trial.” In the instant case, the transcript, as approved by counsel for both the state and defendant, shows: “The Court refused to instruct the Jury on the meaning of the words, ‘improper liberties’ contained in the amended information herein after Defendant requested the said instruction."

Frankly, we suspect that the meaning of that phrase, even when read by an experienced lawyer in context with the remainder of the statute, leaves him in doubt of its true meaning, especially as distinguished from other readily understood phrases therein set forth. “[W]here technical or other terms are used, and their meaning may not be comprehended readily by unprofessional persons, and it appears, from the whole case made, that the jury may possibly misapply them, they may or should be defined or explained in such a way as to give to the jury a correct idea of their meaning.” 23A C.J.S. Crim. Law § 1191, pp. 484-485. See also State v. Chevlin, Mo., 284 S.W.2d 563, 567 [11, 12]; City of St. Louis v. James Braudis Coal Co., Mo.App., 137 S.W.2d 668, 670, 672-673. Under the circumstances here shown, we are convinced that the court erred in not making clear by instructing the jury, in substance, that “improper liberties”, as used in Instruction No. 1A, meant a sexual assault upon Miss Kelly. In this connection, we think it well to note that the sufficiency of the information upon which the case was tried was not challenged. Upon retrial it may be that an amended information would make clear the “felony” denounced under § 563.160 which defendant allegedly intended to commit after breaking and entering Miss Kelly’s apartment.

It may also be noted that there is at best in this case little, if any, substantial evidence that defendant knew or even believed that Miss Kelly or any other female person was present in the apartment when he attempted to break into and enter. There is no evidence that defendant knew Miss Kelly. The only direct evidence on that phase of the case is that he did not. Neither is there any evidence that he knew anything about the residents of the apartment house other than that he told the detective that he “did not know who lived there, although he did know that white people lived there”; and the further evidence that if the defendant, at any time prior to the time of the offense herein alleged, while at the rear of the apartment house when Miss Kelly was in front of the kitchen window and within the range of his vision, had looked he could have seen her. Admittedly, he could not have seen her when she was in her bedroom. Of course, it may be surmised that he had seen her in front of the kitchen window, but may it be lawfully inferred from the evidence that he in fact did see her? The question is a close one. If the evidence does not support a finding that defendant knew or believed that a female person would be found in the apartment he attempted to enter, it would be questionable as to whether the evidence in this record would support a finding of defendant’s intent to commit the crime denounced by § 563.160. We are constrained, however, to reverse and remand the cause for such further proceedings as may better tend to resolve one way or the other the issue of defendant’s guilt of attempted burglary as, we believe, insufficiently charged in the present information and may be sufficiently charged in an amended information.

In remanding the case for a new trial, we think it well also to call attention to reversible error appearing in Instruction No. 6, defining the burden of proof required to afford defendant the benefit of evidence adduced with respect to his good character. That instruction reads:

“The good character of the defendant, if proven to your reasonable satisfaction, is a fact in the case which you ought to consider in passing upon the question of his guilt or innocence of this charge, for the law presumes that a man whose character is good is less likely to commit a crime than one whose character is not good. But if all the evidence in the case, including that which has been given touching the good character of the defendant, shows him to be guilty of the charge, then his previous good character cannot justify, excuse, palliate, or mitigate the offense.”

Defendant adduced substantial evidence as to his good character. He should have the benefit of that evidence if the jury found from a preponderance of the evidence that he was of good character. See State v. Swinburne, Mo., 324 S.W.2d 746, 749; Bell v. Pedigo, Mo., 364 S.W.2d 613, 620.

Inasmuch as other errors complained of in the motion for new trial probably will not again occur in any future trial, we need not here consider them.

The judgment is reversed and the cause remanded.

All concur

      . All emphases shown herein are those of this court.

      . To which revision all statutory references herein are made unless otherwise indicated.

      . See § 560.040 defining the burglary here attempted to be charged and proved.


text:
    Minta DUNNEGAN, Respondent, v. C. Rouss GALLOP, Director of the Department of Public Health and Welfare, Appellant.
    No. 49610.
    Supreme Court of Missouri, Division No. 2.
    July 8, 1963.
    Thomas F. Eagleton, Atty. Gen., Moody Mansur, Asst. Atty. Gen., for appellant.
    No attorney for respondent.
   BOHLING, Commissioner.

This is an appeal from a judgment of the Circuit Court of Butler County reversing and remanding for redetermination a decision of the Director of the Department of Public Health and Welfare denying the application of Minta Dunnegan for old age assistance. Consult Chapters 207 and 208. (Statutory references are to RSMo 1959, V.A.M.S., unless otherwise noted.) This appeal was filed on behalf of “C. Rouss Gallop, Director, State Department of Public Health and Welfare” on June 14, 1962.

At the threshold of the case we face appellant’s contention that this court has appellate jurisdiction under § 191.130 on the theory said Director is a state officer within Art. V, § 3, Mo.Const., V.A.M.S., vesting appellate jurisdiction of civil cases here where “any state officer as such is a party”; and that White v. State Social Security Comm, and Jones v. State Dept, of Public Health & W., hereinafter discussed, should no longer be followed.

This proceeding was styled before the Director of the Department of Public Health and Welfare as follows: “In re: Mrs. Minta Dunnegan [followed by her address], Applicant for Benefits, to-wit: Old Age Assistance.” In the Circuit Court of Butler County, it is captioned: “Mrs. Min-ta Dunnegan, Plaintiff, vs. Division of Welfare, Defendant.” It acquired the following caption in appellant’s “Affidavit for [Notice of] Appeal”: “In the Matter of Minta Dunnegan, Old Age Assistance Claimant, Plaintiff, vs. C. Rouss Gallop, Director, State Department of Public Health and Welfare, Defendant”; and is carried in this court as shown in the caption to this opinion.

Prior to Laws 1945, pp. 945-957, §§ 1-37, Missouri had, among others a State Board of Health (Ch. 57, Art. I, RSMo 1939), a Board of Managers of the State Eleemosynary Institutions (Ch. 51, Art. I, Id.), and a State Social Security Commission (Ch. 52, Art. I, Id.). In the reorganization of the Executive Departments of the State Government under the 1945 Constitution (Art. IV, § 12), the above-named boards and commission were abolished and discontinued and all their existing powers and duties, with any additional powers and duties thereafter assigned, were to be administered by the State Department of Public Health and Welfare then created and established by Laws 1945, aforesaid. Consult, so far as involved, now. Chapters 191, 207, 208.

The law provided for the control and administration of said Department of Public Health and Welfare “by a director of public health and welfare.” Laws 1945, p. 946, §2; § 191.020. It directed the appointment of a director for each of the three divisions of said Department, “namely: the division of health, the division of mental diseases, and the division of welfare.” Laws 1945, p. 947, § 6; § 191.060, RSMo 1949, V.A.M.S. All the powers and duties of the State Social Security Commission were transferred to the State Department of Public Health and Welfare to be assigned to the Division of Welfare within said department. Laws 1945, p. 945, §§ 1 and 31; see § 191.010. Said Division of Welfare was vested with the administration, among other things, of the law relating to pensions and old age assistance. Laws 1945, p. 954, § 32; § 207.010. Under Laws 1945, p. 954, § 33, the Department of Public Health and Welfare on behalf of the Division of Welfare had power: “(1) To sue and be sued.” § 207.020. The repeal and reenactment of said § 207.020 by Laws 1961, p..532, provided: “In addition to the powers, duties and functions vested in the division of welfare by other provisions of this act' or by other laws of this state, the division of welfare shall have the power: (1) To sue and be sued.” Consult also § 208.110.

Appellant points to no specific provision of the limited authority conferred upon the “[Director of the department of public health and welfare” by § 191.130 for vesting jurisdiction of this appeal here under Art. V, § 3, Mo.Const., but stands on the general assertion that § 191.130 repealed former statutory provisions, and White v. State Social Security Comm., 1940, 345 Mo. 1046, 137 S.W.2d 569 [3], and Jones v. State Dept. of Public H. & W., 1962, Mo. App., 354 S.W.2d 37 [1], should no longer be followed.

Section 191.130, enacted 1 Laws 1947, p. 315, § 10a, provides: “For all debts and demands whatsoever due any of the institutions subject to the control of the department of public health and welfare, and all damages for failure of contract, and for trespass and other wrongs to the institution or any property thereof, real or personal, actions in any court of competent' jurisdiction may be maintained in the name of the director of the department of public health and welfare.”

It has been often said that Missouri courts of appeals are courts of general appellate jurisdiction; that the Missouri Supreme Court is a court of limited appellate jurisdiction, and that our jurisdiction should affirmatively appear of record. Haley v. Horwitz, Mo., 286 S.W.2d 796 [3-5]; Fowler v. Terminal Rd. Ass’n, Mo., 363 S.W.2d 672 [3], We have also considered, in effect, that our jurisdiction was not subject to the mere stroke of a pen in an attempt to cast an appeal to this court. Vanderberg v. Kansas City, Mo., Gas Co., 199 Mo. 455, 459, 97 S.W. 908.

The provision “actions * * * may be maintained in the name of the director of the department of public health and welfare” of § 191.130 implies permissive and not mandatory action by said director. Since 1937 the quasi-public corporate entity charged with the administration of the social security law has had power to sue and be sued. Laws 1937, p. 470, § 4; RSMo 1939, § 9399; Laws 1945, p. 954, § 33; § 207.020, last reenacted in Laws 1961, p. 532. Section 191.130 is restricted to specified matters. Appeals involving rulings on the eligibility of applicants for old age assistance are not among the subject matters where the director may maintain the action. The statutory public quasi corporation is the interested party. The State Department of Public Health and Welfare has considered itself to be the proper legal entity on appeal in like actions. See, among others, Velghe v. State Dept, of Public H. & W., Mo.App., 362 S.W.2d 747, 750, 751; Davis v. State Dept. of Public H. & W., Mo.App., 274 S.W.2d 615. Such action accords with the White and Jones cases, supra; and see the reasoning in Parker v. Unemployment Compensation Comm., 358 Mo. 365, 214 S.W.2d 529, 532, 534.

We said in the White case, supra, 137 S.W.2d 569, 570 [3]: “It is suggested that a ‘State Officer is a party.’ However, no individual officer is a party. The parties are the applicant and the State Social Security Commission. It is not a state officer because it is a legal entity and a quasi public corporation as we have held in the case of the State Workmen’s Compensation Commission, the State Highway Commission, and the State Public Service Commission, and for the same reasons. [Citing authority.]” The White case further held, supra [4], that the applicant’s eligibility for old age pension or assistance was involved and not a construction of the revenue laws of the state within Art. V, § 3, Mo.Const. See also the Parker case, supra, 214 S.W.2d 1. c. 534 [10], The Jones case, supra, follows the White case. A like situation exists on this appeal. There is no contention that the monetary amount involved vests jurisdiction here. Consult, in this connection, § 208.150, subd. 1.

Appellant has failed to establish that jurisdiction of this appeal is in this court and that we should chart a course different from that laid down in the White and Jones cases, supra.

Under the authorities this review should be transferred to the Springfield Court of Appeals. It is so ordered.

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: BOHLING, Commissioner.

text:
    Lori CORNELIUS, by Next Friend, Elmer Cornelius, Respondent, v. Wayne Frederick SHIELDS, Appellant.
    No. 49436.
    Supreme Court of Missouri, Division No. 2.
    July 8, 1963.
    Buehner & Thomas, Joplin, for appellant.
    Gerald H. Lowther and James K. Pre-witt, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for respondent.
   BOHLING, Commissioner.

Lori Cornelius, by her next friend, Elmer Cornelius, her father, secured a $25,000.00 judgment against Wayne F. Shields for personal injuries sustained when struck by his automobile. We refer to Lori as plaintiff. Defendant has appealed, contending that the refusal of instruction No. 7, tendered by him, was reversible error. There is no contention that plaintiff did not make a case on the submitted issues; that is, that defendant negligently failed to keep a proper lookout, or negligently failed to stop or swerve his automobile and avoid striking plaintiff.

Plaintiff was injured between 5:00 and 5:30 p. m. Sunday, August 21, 1960. Mr. Cornelius, with his family, stopped at the P. C. Carlock fruit farm about 2½ miles northeast of Greenfield, Missouri, on the north side of Highway H. Highway H is an east-west road in front of and is straight for i/s of a mile on each side of the Carlock residence. The blacktop pavement is 19, the south shoulder is 4, and the north shoulder is 6 feet wide. The land is practically level with a small dip or ditch for drainage north of the highway and west of the Carlock driveway. Mr. Cornelius was driving a Ford automobile, about 17 feet long. He parked the car about four feet west of a large tree west of the Carlock driveway, with its front end about even with the tree. Testimony put this tree 36 feet north of the pavement by measurement. Mr. Cornelius walked north to talk to Mr. Carlock. Plaintiff, 2 years and 20 days old, went with him. Mrs. Cornelius was seated on the front seat, and Carlene, about 13, John, about 12, and Dale, about 9, were on the rear seat. Plaintiff, who had an ice cream cone, soon returned to the west side of the Cornelius car. When plaintiff failed to come around to the east side, Mrs. Cornelius looked to see if she was getting in the west side of the car and, looking through the rear glass, saw her standing in the middle of the pavement as if headed south across the road. She did not know whether plaintiff walked or ran out onto the road. Mrs. Cornelius heard a westbound car approaching. It was about 170 or 200 feet east of plaintiff. She placed defendant’s speed at 50 to 60 miles an hour, testifying defendant’s car struck plaintiff within three or four seconds. There was testimony that defendant did not slacken speed, swerve or sound his horn, and plaintiff was knocked through the air. Carlene testified she saw plaintiff two or three feet north of the pavement. She then saw a westbound car coming around a curve. She looked again and plaintiff was standing in the middle of the road. Plaintiff’s ice cream cone was on the highway after she was struck. There were 30 feet of skid marks east of where it lay and plaintiff lay 39 feet west of the ice cream cone.

The evidence for plaintiff was that a westbound motorist had a clear view of 20 or more feet north of the pavement when 200 feet east of where plaintiff was struck, that at the speed defendant was traveling he could stop in 59 feet plus reaction time, which was established at J^ths of a second.

Defendant and his wife were en route in his 1957 Renault automobile from Greenfield to their home in Springfield. The car was 5 feet wide and in good mechanical condition. They placed defendant’s speed at 35 to 40 m. p. h. Defendant first saw plaintiff at the instant his wife screamed. Plaintiff was then at the edge, not more than a foot north, of the pavement, and defendant was 40 to 45 feet east of her. She was running southwesterly across the highway. She was west of the Cornelius car, which was west of the large tree west of the Carlock driveway. Defendant’s judgment was that the rear of this car was 5 or 6 feet north of the edge of the pavement. Defendant’s wife screamed when she first saw plaintiff, at the edge of the pavement and running into the road. Defendant pushed down on his foot pedal as hard as he could, but it “wasn’t hard enough,” and his automobile, between its center and left headlight, struck plaintiff while traveling 10 to 15 m. p. h. His car laid skid marks 59½ feet long, starting near the center of the westbound lane and veering slightly to the right. It was completely on the highway when he stopped. He stated there was nothing to keep him from seeing plaintiff while she was on the north shoulder of the highway. He could not say he saw her while she was in the yard. Plaintiff was not plummeted through the air, but when the Renault was stopped she was thrown forward and rolled on the pavement for about 5 or 10 feet in front of his car.

Defendant testified he made no attempt to swerve his automobile or sound its horn.

As stated, plaintiff submitted her case in the disjunctive, predicating a verdict on findings that defendant was negligent in not keeping a proper lookout and discovering plaintiff’s presence on or near said highway in time to have prevented his automobile from striking plaintiff, or in failing to stop or swerve his automobile when he should have seen plaintiff on or closely approaching said highway and should have known a collision with her was imminent unless he so stopped or swerved his automobile.

Defendant’s refused instruction No. 7, omitting submissions not pertinent here, was to the following effect. It submitted findings that the defendant was westbound “along the right side of Highway ‘H’ at a speed of 35 to 40 miles per hour and that when defendant’s car was approximately 40 feet east of the plaintiff, plaintiff suddenly ran out * * * from behind the car in evidence that was parked with its rear end five or six feet north of the north edge of Highway 'H‘ and directly into the path of the defendant’s approaching automobile; and * * * that as the plaintiff did so• run out the automobile of defendant was then so close to plaintiff that in the exercise of the highest degree of care defendant could not have avoided the collision by stopping said automobile, or sounding its horn, or swerving same, * * * and * * * that at all times prior to and during the occurrence mentioned in evidence that the defendant * * * exercised the highest degree of care in the manner in which he operated his said automobile, then * * * your verdict should be in favor of the defendant, Wayne Shields.” (Emphasis added.)

Instruction No. 7 predicated a defendant’s verdict on the whole case upon a finding of certain facts, but omitted submitting other facts controverting one of the charges of negligence factually submitted in plaintiff’s instruction; that is, that defendant negligently failed to maintain a proper lookout to discover the presence of plaintiff in time to have avoided striking her. A number of witnesses, including defendant, testified that there were no obstructions on the north shoulder of the highway to keep a westbound motorist from seeing plaintiff. A converse verdict-directing factual instruction must require a finding on all charges of negligence submitted for recovery. Martin v. Lingle Refrigeration Co., Mo., 260 S.W.2d 562, 566 [2]; Fellman v. St. Joseph L. & P. Co., Mo., 334 S.W.2d 60 [1]. Scott v. Nash, Mo.App., 355 S.W.2d 626, 633 [6], states: “[0]ne may not, under the guise of a converse instruction, direct a verdict upon a finding in respect to one particular issue and in so doing exclude all other factual issues upon which a verdict might be returned * * *, or pick up and eliminate an essential element by means of a ‘catchall’ phrase.” See also Martin case, supra; Rohde v. St. Louis Pub. Serv. Co., Mo., 249 S.W.2d 417, 421 [4], Under the foregoing authorities requested instruction 7 was misleading and confusing.

The submitted finding “that when defendant’s car was approximately 40 feet east of the plaintiff, plaintiff suddenly ran out * * * from behind the car in evidence that was parked with its rear end five or six feet north of the north edge of Highway CH’ and directly into the path of the. defendant’s approaching automobile; and * * * that as the plaintiff did so run out * * * ” assumes material controverted facts without submitting said facts for the jurors’ determination. (Emphasis added.)

Defendant testified that in his “judgment” an automobile (the Cornelius car) was parked “five or six foot” north of the edge of the pavement. Six witnesses, including disinterested parties, gave testimony to the effect the rear of the Cornelius car was between 15 and 20 feet north of the edge of the pavement. The instruction assumes the controverted fact that the rear end of the parked car was “five or six feet” north of the pavement, without submitting that fact issue to the jury, and was properly refused. Watt v. St. Louis Pub. Serv. Co., Mo., 354 S.W.2d 889, 892 [6]; Trautloff v. Dannen Mills, Inc., Mo.App., 316 S.W.2d 866, 873 [7]; George v. Allen, 362 Mo. 971, 245 S.W.2d 848, 850 [3, 4].

No witness testified that plaintiff “suddenly ran out * * * from behind” any car. The evidence favorable to defendant is that she was running when first seen by defendant’s wife at the edge of the pavement and by defendant when one foot north of the pavement. Payne v. Scott, Mo.App., 181 S.W.2d 161, 164 [11].

Plaintiff advances additional reasons for sustaining the trial court’s refusal of instruction No. 7. This appeal is sufficiently disposed of on the issues discussed.

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: STORCKMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent. v. John GIDEN, Appellant.
    No. 49607.
    Supreme Court of Missouri, Division No. 2.
    July 8, 1963.

      Wyvetter H. Younge, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Thomas R. Green, Special Asst. Atty. Gen., St. Louis, for respondent.
   STORCKMAN, Presiding Judge.

The defendant John Giden was found guilty of attempted burglary, second degree, §§ 556.150 and 560.070, RSMo 1959, V.A. M.S., and his punishment was assessed at imprisonment for a term of two years. After verdict he filed a motion for judgment in accordance with his motions for a directed verdict or, in the alternative, for a new trial, which motion was overruled. The defendant was sentenced in accordance with the verdict of the jury and he has appealed. A co-defendant of Giden was convicted in a separate trial and the judgment was affirmed. See State v. Davis, Mo., 367 S.W.2d 517.

No brief has been filed by the defendant in this court and the case is before us on the transcript of the record and the brief of the state. In this situation our review extends to the assignments of error properly preserved in the motion for new trial and to the essential portions of the record. S.Ct. Rules 27.20 and 28.02, V.A. M.R.; State v. Slicker, Mo., 342 S.W.2d 946, 947 [ 1 ].

The first three specifications of error in the motion for new trial are that “the verdict is against the evidence”, “the verdict is against the weight of the 'evidence”, and “the verdict is for the wrong party and should have been for the defendant”. S.Ct. Rule 27.20 provides that a motion for a new trial “must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor.” See also § 547.030, RS Mo 1959, V.A.M.S. We are precluded from exploring the allegations of the first three paragraphs of the defendant’s motion for new trial because they are too general to present reviewable questions on appeal; furthermore, the weight of the evidence is solely within the province of the jury. State v. Schramm, Mo., 275 S.W.2d 343[1] ; State v. Fields, Mo., 293 S.W.2d 952, 954 [10]; State v. Turner, Mo., 320 S.W.2d 579, 586[17-18].

Next the defendant contends that the trial court erred in refusing to sustain defendant’s motion and to direct a verdict of acquittal on the theory that the evidence was insufficient to make a submissible case. This assignment necessitates a review of the evidence.

The place where the attempted burglary was committed was a drugstore at 2607 Cass Avenue in St. Louis. The store building is located on the northwest corner of Jefferson and Cass, and a stock of drugs and merchandise of the value of about $10,000 was kept in the store at the time in question. On December 20, 1961, when the store was closed and locked for the night, the brick wall in the rear was intact and the burglar alarm was turned on. At 1:37 a. m. on December 21, 1961, the store’s burglar alarm was activated in the office of the operating company, and the person in charge immediately called the police. In about two minutes after the alarm sounded, two police patrols each containing two officers converged on the drugstore. One patrol car approached from the north over Jefferson and a police officer got out of it at the rear of the store. The other officer drove the car around the corner to the front of the store where he saw two men, later identified as the defendant and Sylvester Davis, standing near the front of the building just west of a gangway which ran to the rear along the west side of the store. A telephone booth stood next to the building just east of the gangway. The officers in the other patrol car approaching from the east on Cass saw the two men emerge from behind the telephone booth as the first patrol car turned the corner and they saw the officer get out and place the defendant and his companion under arrest.

Further investigation disclosed that a hole had been broken in the brick wall at the rear of the building but had not been enlarged sufficiently to permit an entrance to be made. Near the hole in the rear wall, a pick, a crowbar, a screwdriver and another metal instrument were found. All" of these tools had brick dust upon them. On a ledge in front of the drugstore, and immediately behind the place where the defendant and his companion were standing when they were apprehended, a pair of gloves were found. They also had brick dust on them.

The defendant and his companion had brick dust on their clothes. The trousers of the defendant were examined by a chemist employed by the police department and loose brick dust found on the outside of the trousers, as well as in the pockets, was shown to be similar to a sample taken from the wall where the opening was being made. The brick dust on the tools was also similar to the sample. •

The defendant testified concerning his activities on December 20, 1961, and during the evening. In explanation of his presence near the store, he said that he ate supper at home about midnight and thereafter went with Sylvester Davis to a bus stop on the southeast corner of Jefferson and Cass Avenues intending to take passage on an eastbound bus to get to a produce-market on North Broadway in search of work; that Sylvester Davis went along because he wanted to know where the defendant was going at that time in the-morning. The defendant testified that while Davis and he were standing on the-corner a policeman called across the street and wanted to know where they were going; that they went over to the north side-of the street to talk to the policemen and' were arrested. He denied that there was-any brick dust on his clothes.

It is well established that circumstantial evidence is sufficient to support a. conviction and in determining the sufficiency of the evidence it must be viewed in the light most favorable to the state. State v. Davis, Mo., 367 S.W.2d 517, 519[2].

An attempt to burglarize the drugstore is quite evident. The discovery and arrest of the defendant at the scene of the-crime within two minutes after the burglar alarm was activated, the fact that no other persons except the defendant and Davis were in the vicinity when the police officers-arrived, the presence of brick dust on the defendant’s trousers, in his pockets and on. the gloves found on the ledge behind him when he was arrested, and the other facts- and circumstances shown by the evidence-tend to prove the defendant’s criminal agency and are sufficient to support the judgment of conviction. State v. Burton, Mo., 357 S.W.2d 927, 930[3]; State v. Ramsey, Mo., 368 S.W.2d 413, (No. 49,826, decided June 4, 1963); State v. Davis, Mo., 367 S.W.2d 517, 519[2,3]; State v. Worley, Mo., 353 S.W.2d 589, 593-594[2]; State v. Bazadier, Mo., 362 S.W.2d 603, 606[7]. The court did not err in refusing to direct a verdict of acquittal.

The defendant offered two instructions relating to the defense of alibi which were refused, but the court did give instruction No. 4 covering the claimed defense. The defendant contends that instruction No. 4 is erroneous in that it shifted to the defendant the burden of proving his asserted alibi, that it was confusing and misleading when read in connection with other instructions, and that it gave the jury a roving commission to find the defendant guilty. In this posture of the defense, we are not concerned with whether an alibi instruction was justified under the evidence.

Instruction No. 4 told the jury that one of the defenses interposed by the defendant is what is known as an alibi, which means that the defendant claims he was at another and different place than that at which the crime was committed and, if the jury had a reasonable doubt as to the presence of the defendant at the time and place where the crime was committed, they should acquit him. The instruction then concluded as follows: “ * * * but you are instructed that a reasonable doubt by you of the defendant having been present at the time and place where said crime was committed to authorize you to acquit him on the ground of your having such reasonable doubt, should be a substantial doubt by you of the defendant having been present at the time and place where such crime was committed and not a mere possibility that he may have been at.another and different place than that at which said crime was committed at the time when it was committed.”

The defendant does not point out in what particular the instruction ■ is confusing or misleading when read in connection with the other instructions. Nevertheless we have examined all of the instructions in the case and find that instruction No. 4 is not confusing or misleading alone or in conjunction with the other instructions. Moreover it does not give the jury “a roving commission to find the guilt of the defendant”. It is hardly the type of instruction that could be susceptible to such a charge.

Instruction 4 is consistent with the definition of burden of proof and reasonable doubt contained in instruction No. 5 and does not have the effect of shifting the burden of proof to the defendant to prove his alleged alibi. State v. Abbott, Mo., 245 S.W.2d 876, 880[7-9]; State v. Griffin, Mo., 336 S.W.2d 364, 368[9]. The assignment of error is denied.

We have considered all of the specifications of error preserved in defendant’s motion for new trial and find them to be without merit. The defendant was present throughout the trial, including his allocution and sentencing. He was represented throughout the trial by court-appointed counsel. We have also examined the parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08 and find them to be proper in form and free from error. Accordingly the judgment is affirmed.

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    Eva A. SHAW, Guy D. Shaw, Robert C. Smith, Reuban J. Smith, Archie M. Smith, Minnie Mellott Thornburg, Pearl DePue Hart and Anna DePue Ream, Appellants, v. Julia Mellott WERTZ et al., Respondents.
    No. 49773.
    Supreme Court of Missouri, Division No. 2.
    July 8, 1963.

      T. Bryant Johnson, Thomas M. Johnson, Osceola, for appellants.
    Ewing, Ewing, Ewing, Carter & Wight, Robert L. Ewing, Nevada, for respondents.
   STOCKARD, Commissioner.

Plaintiffs have appealed from the judgment of the Circuit Court of Vernon County wherein it was decreed that they have no title to the Southwest Quarter of Section 22, Township 35 North, Range 31 West. Title to real estate is involved and this court has appellate jurisdiction.

The petition is entitled an action for partition, but it is in fact a petition to determine title to real estate, and then to partition in the event plaintiffs are determined to have an interest therein.

The land was owned by Silas H. Mellott, also known as S. H. Mellott. His last will and testament in its entirety, except for signatures, was as follows:

“This is my last Will and Testament, written on this the Twentieth day of January, Nineteen Hundred and Twelve.
“Therefore, be it known to all concerned, that I, S. H. Mellott at my death (and after my just debts are paid) do Will and Bequeath all the remainder of my property of whatsoever nature, to my beloved wife Mrs. Clara M. Mellott-nee Roy, she to have complete control and free will in the management and disposal of same so long as she may live.”

Mr. Mellott died in 1918 without issue. His will was probated and his widow, Clara M. Mellott, took possession of the land. Mrs. Mellott died testate in 1951. By her will she purported to “give, devise and bequeath” the land to Marie Dale, one of the defendants. Plaintiffs are some of the heirs at law of Silas H. Mellott. Defendants are the other heirs at law who are not plaintiffs, Marie Dale and her husband, and certain others whose presence is immaterial. The question presented for determination is whether by the provisions of the will of Silas H. Mellott there was given to Clara M. Mellott a life estate only or an estate in fee simple. The trial court held that she received a fee, that plaintiffs, as heirs at law of Silas H. Mellott, had no interest in the land, and that Marie Dale was the owner thereof.

By Section 474.430 RSMo 1959, V.A.M.S., and the prior statutes on the subject, we are admonished that “All courts * * * shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them.” Such true intent and meaning of the testator must be determined from the entire will, and “not from single words, passages, or sentences,” Russell v. Eubanks, 84 Mo. 82, 86, and must be enforced unless it conflicts with public policy or positive law. Vaughan v. Compton, 361 Mo. 467, 235 S.W.2d 328, 330; Smith v. Smith, 359 Mo. 44, 220 S.W.2d 10, 12.

It has long been the rule in Missouri that in wills the use of the words “heirs and assigns” is not necessary to convey a fee simple title. Roth v. Rauschenbusch, 173 Mo. 582, 73 S.W. 664, 61 L.R.A. 455; Vaughan v. Compton, supra at 235 S.W.2d p. 330. Instead, whether or not a fee or some lesser estate is conveyed is to be determined from the language used, and in making this determination it is to be assumed that the testator knew and understood the meaning and legal effect of the words used. In this case, by the language “I * * * do Will and Bequeath all the remainder of my property of whatsoever nature, to my beloved wife, Mrs. Clara M. Mellott-nee Roy,” the testator would unquestionably have conveyed a fee simple title to his wife if he had there stopped. Estill v. Ballew, Mo., 26 S.W.2d 778, 779; Presbyterian Orphanage of Missouri v. Fitterling, 342 Mo. 299, 114 S.W.2d 1004; Fries v. Fries, 306 Mo. 101, 267 S.W. 116. The decisive question is, what is the effect of adding to the above language the words, “she to have complete control and free will in the management and disposal of same so long as she may live.”

It has been held that a devise of land which is in no wise limited as to enjoyment or duration, and which carries with it an absolute power and “right to sell, use and otherwise dispose of said property” conveys a fee simple title. Presbyterian Orphanage of Missouri v. Fitterling, supra; Vaughan v. Compton, supra 235 S.W.2d at p. 331. Therefore, if the words “so long as she may live” were not at the end of the phrase, the preceding words simply expressed power and authority which the devisee would have had by virtue of the previous language granting a fee, or as stated in Fries v. Fries, supra 267 S.W. at p. 118, “to add to words, which convey a fee, express words which make explicit a power to convey which is implicit in words which create the fee, raises no implication of a limitation or diminution of the fee.” We must, therefore, determine whether by the addition of the words “so long as she may live” the testator intended that the previously granted fee, with the explicit power to control, manage and dispose of the land, be reduced or cut down to a life estate only.

If it be held that the quoted six words reduced the previously granted fee to a life estate the testator would have died intestate as to the remainder over after the life estate. Johnson v. Antry, Mo., 5 S.W.2d 405. This would be contrary to the express language used in the will. Note that the testator first provided for the payment of his “just debts,” and he then expressly purported to dispose of “all the remainder of my property of whatsoever nature.” Therefore, if the devise to the widow is considered to be a life estate only this would result in “all the remainder” of his property not being disposed of contrary to his intention as evidenced by the express language used in the will. In addition, notwithstanding the conflict with the express language used, there is a presumption against intentional partial intestacy. Wiechert v. Wiechert, 317 Mo. 118, 294 S.W. 721; Lang v. Estorge, Mo., 242 S.W. 2d 50; Lutheran Altenheim Soc. of Missiouri v. Younghouse, 365 Mo. 39, 275 S. W.2d 361; Gehring v. Henry, Mo., 332 S. W.2d 873. But where, as here, the will indicates the testator’s intent to make a complete disposition of all of his property, and no plain, unequivocal language, or law, demands a contrary interpretation, it is then said that there is a strong presumption against partial intestacy. McElroy v. Fluker, Mo., 265 S.W.2d 361; In re Fowler’s Estate, Mo., 338 S.W.2d 44. The correct and applicable rule to the present situation is stated in Vaughan v. Compton, supra, 235 S.W.2d at p. 331, as follows: “It may be conceded that when property is devised in general terms, and without the use of any qualifying words denoting that a specific quantum as to estate is being conveyed, that such estate may be later limited or converted to a life estate by the further use of other words or clauses implying that of necessity the estate granted is only for the life of the devisee, with a remainder over to certain named others. * * * But such a limitation over must clearly appear, and the expressions and words used to denote such limitation over must be not only free from ambiguity but must exclude any other construction. * * * The intention to create an estate subject to a condition or qualification ‘must be definitely and clearly shown by the use of apt and sufficient words’ not inconsistent with the other words of the instrument.” We think that by the language first used the testator conveyed a fee, and that the subsequent language did not limit or convert that fee to a lesser estate for life because there was no limitation over whatever, and the words used upon which plaintiffs rely are not free from ambiguity, and if construed to reduce the estate to a life estate are inconsistent with the other words of the will.

Plaintiffs argue that the intent of the testator is to be ascertained from the whole instrument, and that every clause if possible must have some operation and be effective for some purpose. They cite Snow v. Ferril, 320 Mo. 543, 8 S.W.2d 1008; Bond v. Riley, 317 Mo. 594, 296 S.W. 401; and Lehmann v. Griffin, 224 Mo. App. 657, 31 S.W.2d 271. We, of course, agree with this contention. It does not, however, require or result in the conclusion that a life estate only was intended. Here, the phrase “so long as she may live” is susceptible of more than one construction. One is, admittedly, that the quantum of the estate is reduced as plaintiffs contend. But, as previously pointed out, that construction conflicts with other express language of the will, and it runs directly into the face of a “strong presumption” to the contrary. The language is also subject to the construction that the testator wanted to express doubly his intention that his widow was to enjoy full unfettered ownership of the land, or what in legal terminology is called a fee simple title. It has repeatedly been held that when a provision in a will is fairly open to more than one construction, that construction which results in intestacy, particularly when the will otherwise indicates that partial intestacy was not intended, will not be adopt-; ed if it can be avoided by any other reasonable construction. Lutheran Altenheim Soc. of Missouri v. Younghouse, 365 Mo. 39, 275 S.W.2d 361; Lang v. Estorge, Mo., 242 S.W.2d 50; Smoot v. Harbur, 357 Mo. 511, 209 S.W.2d 249; Plummer v. Brown, 315 Mo. 627, 287 S.W. 316. We conclude, pursuant to the above rules of construction, that the devise to Clara M. Mellott was a fee simple title to the real estate conveyed by the will.

It is not often that the language of a bequest in different wills is identical, and we have found no case construing language identical to that here. However, we have found two cases, Pfeifer v. Wright, D.C., 34 F.2d 690, and Shoaf v. Wright, 174 Okl., 87, 49 P.2d 526, construing the following provision in the same will: “And I give and bequeath to my wife, Rosa B. Wright, the balance of my property both real and personal, to be used by her so long as she lives and enjoys the same.” The will contained no provision purporting to dispose of a remainder over. In each case it was held that the wife received fee simple title to the realty. While we do not consider the above cases controlling, they are useful for comparison purposes.

For the reasons previously set out we rule that Clara M. Mellott received a fee simple title to the realty involved, and that the trial court correctly ruled that plaintiffs, as heirs at law of Silas H. Mellott had no interest therein. We need not rule those other matters which depended upon a different result to be essential to disposition of this appeal.

The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HYDE, Judge.

text:
    RUAN TRANSPORT CORPORATION, a Corporation, and Orscheln Bros. Truck Lines, Inc., a Corporation, Plaintlffs-Respondents, v. MISSOURI HIGHWAY RECIPROCITY COMMISSION et al., Defendants-Appellants.
    Nos. 49615, 49616.
    Supreme Court of Missouri, En Banc.
    July 8, 1963.
    Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Fred L. Howard, of counsel, Jefferson City, for appellants.

      Hendren & Andrae, by Charles H. Howard and John E. Burruss, Jr., Jefferson City, for respondents.
    Thomas D. Graham, Robert L. Hawkins, Jr., Graham & Hawkins, Jefferson City, for Kaw Transp. Co. and Blue Valley Transfer Co., amici curiae.
   HYDE, Judge.

These are consolidated cases for declaratory judgment to determine meaning and effect of Sec. 301.277 with injunction asked against enforcement of defendants’ interpretation. (Statutory references are to RSMo and V.A.M.S.) The Court made the construction and declaration sought by plaintiffs and enjoined defendants who have appealed.

Sec. 301.277 is a part of the Act of 1958 (Laws 1958, p. 176, now Secs. 301.271-301.-279) creating the Missouri Highway Reciprocity Commission, with authority to make agreements with other states for licensing of fleets of commercial motor vehicles on an apportionment basis according to miles traveled in each state. Under this authority, the Commission did sign for Missouri a Vehicle Registration Proration and Reciprocity Agreement (referred to as the “Uniform Compact”) with 13 other states, north and west of this state; and a somewhat similar separate agreement was made with Illinois. Plaintiffs have fleets based and registered in Missouri; and the issue herein is whether plaintiffs have the right to use, for any trip in intrastate commerce in Missouri, vehicles of their fleets, so based and registered, without payment of the full Missouri registration fee. Defendants are members or officers of the Reciprocity Commission.

Defendants’ contention is that vehicles of a fleet registered in Missouri under the “proration of registration” provisions of the Uniform Compact may only be operated on interstate trips to other states, or on combined interstate and intrastate trips (which they say is carrying freight from one point in this state to another while on an interstate trip), but that any fleet vehicle used for intrastate trips must pay the full Missouri license fee. In short, if a fleet vehicle makes one intrastate trip during the year, the full Missouri registration fee of $800 must be paid for it even though the fees of other states, in which it had traveled, also would have to be paid on the basis of miles traveled in each other state.

Plaintiffs contend that the owner of a fleet based and registered in Missouri under the “proration of registration” provision of the Uniform Compact is entitled to operate fleet vehicles both on interstate trips to other states and on intrastate trips in this state and pay for its registration on the basis of the total number of miles traveled. (The applicable percentage for determining the license fee per unit in each state may be found by dividing the number of miles traveled in that state by the total number of miles traveled in all states.)

During the years 1960 and 1961, plaintiffs were permitted to operate their fleet vehicles both interstate and intrastate on an apportionment basis. The fees were apportioned among the states on the basis of the number of miles the fleet vehicles traveled in the various states. During the year 1961, the Commission ruled that beginning on January 1, 1962, a full license fee of $800 should be paid to the State of Missouri on any vehicle whether a unit of a fleet or not if the vehicle were to be used even for a single intrastate trip. A portion of the notice or memorandum sent by the Commission to all prorate carriers was as follows: “Missouri prorate licenses (whether base plate or decal) authorize operation only in interstate commerce or combined interstate and intrastate commerce. They do not authorize an operation which is solely intrastate. To determine whether a vehicle is properly licensed we consider the movement being made at the time in question. We do not consider how the vehicle may have been operated yesterday or how it may be operated tomorrow. Even though a vehicle may be operated in interstate commerce 90% of the time (and for such operation could properly be prorated), if it makes a trip which is solely intrastate it must have a full fee Missouri license to legally make such a wholly intrastate trip.” (“Decal” refers to the identification given prorate fleet vehicles in contracting states other than their base state.)

Sec. 301.273 established the Commission and with Sec. 301.275 stated some of its duties and powers. Sec. 301.277 gives it authority, by Subsection 1(1), to exempt vehicles licensed in other states from Missouri registration laws to the extent equivalent exemptions are extended to vehicles licensed in Missouri. This is true reciprocity for which Sec. 301.271 also makes provision unless there are agreements otherwise by the Commission. Subsection 1(2) authorizes the Commission to make agreements, with other states, such as the Uniform Compact, for “licensing of fleets of motor vehicles and trailers or combinations thereof operated in interstate or combined interstate and intrastate commerce * * * on an apportionment basis commensurate with and determined by the miles traveled on and the use made of said state’s highways.” Subsection 1(3) authorizes such agreements when vehicles are not licensed in the state of the owner’s residence but are based in and operated from a place of business in another state. The controversy in this case mainly is over the construction and effect of paragraph 3 of Sec. 301.277 which is as follows: “3. Notwithstanding any other provision of law, no reciprocity shall be granted under any statute or agreement for the operation of any commercial motor vehicle within the state of Missouri solely in intrastate commerce, but all vehicles so engaged must be duly registered and licensed in the state of Missouri.”

Missouri executed the Uniform Compact November 9, 1959, with certain restrictions, No. 3 of which is as follows: “Commercial motor vehicles transporting persons or property in interstate commerce and/or combined interstate commerce and intrastate commerce are subject to this agreement. Commercial motor vehicles transporting persons or property solely in intrastate commerce must be duly registered and licensed in the State of Missouri.” This was considered to be in compliance with and required by Sec. 301.277, subd. 3. Defendants’ contentions are that Sec. 301.-277, subd. 3 prohibits operation of commercial motor vehicles in movements within this state solely in intrastate commerce on the basis of a prorate registration; that the prohibition contained in Sec. 301.277, subd. 3 against granting reciprocity extends to all types of reciprocity, claiming the registration based on proration is a type of reciprocity; that Sec. 301.277, subd. 3 prohibits defendants from entering into an agreement providing that operations solely in intrastate commerce may be conducted on a prorate registration; and that the Uniform Compact and the Missouri Appendix thereto do not require that plaintiffs’ vehicles be permitted to operate in Missouri in intrastate commerce.

Certainly the purpose of the 1958 Act was to authorize proration compacts such as the Uniform Compact, which was in existence and operation before the 1958 Act was adopted. Prior to that only straight reciprocity was authorized in this state so that only residents of other states, permitting Missouri residents to operate their vehicles therein without payment of license fees, were allowed the same privileges in Missouri. This straight reciprocity did not cover modern motor transportation needs because owners needed to base motor fleets in states other than that of their residence or incorporation. Nevertheless, the 1958 Act recognized and retained such reciprocity by authorizing the Commission to make agreements therefor (301.277, subd. 1(1)) and to provide for it in the absence of agreements (301.271). However, such reciprocity is applicable to individual vehicles, while the fleet proration registration is a new and different concept. The Uniform Compact treats “proration of registration” and “reciprocity” as separate and distinct concepts in its Statement of Purposes and Principles, Sec. 1, Art. 1, and in “Definitions”, Art. 2, including the following:

“Sec. 17. Registration. Registration shall mean the registration of a vehicle and the payment of annual fees and taxes as set forth opposite the name of each contracting State in the Appendix hereto.
“Sec. 18. Proration of Registration. Proration of registration shall mean registration of fleets of commercial vehicles in accordance with Article 4 of this agreement.
“Sec. 19. Reciprocity. Reciprocity shall mean that each contracting State, to the extent provided in this agreement, exempts a vehicle from registration and the registration fees set forth in Section 17 and the Appendix.”
The compact also has separate articles on “proration of registration” (Art. 4) and on “reciprocity” (Art. 5). Sec. 72, Art. 5, provides that the reciprocity granted “shall not apply to a vehicle which is entitled to be registered or identified as part of a prorated fleet.” Sec. 73 thereof provides: “The reciprocity granted pursuant to this article shall permit the interstate operation of a commercial vehicle and intrastate operation which is incidental to a trip of such vehicle involving interstate operation.”

As to “proration of registration” the compact contains the following provisions:

“Sec. 54. Extent of Privilege. Upon the registration of a fleet in a contracting State pursuant to this article, each vehicle in the fleet may be operated in both interstate and intrastate operations in such State (except as provided in Section 34).
“Sec. 34. Statutory Vehicle Regulations. This agreement shall not authorize the operation of a vehicle in any contracting State contrary to the laws or regulations thereof, except those pertaining to registration and payment of fees; and with respect to such laws or regulations, only to the extent provided in this agreement.”

Defendants say in their brief concerning Sec. 301.277, subd. 3: “The prohibition against the granting of reciprocity for an operation solely in intrastate commerce must also prohibit a solely intrastate operation on a prorate registration.” However, this prohibition is not against every operation solely in intrastate commerce. Instead, the prohibition of Sec. 301.277, subd. 3 is against granting reciprocity “for the operation of any commercial motor vehicle within the state of Missouri solely in intrastate commerce.” This is in harmony with Sec. 73 of the compact, supra; and it is still necessary to have straight reciprocity with states that are not parties to the Uniform Compact and also for vehicles of contracting states that are not part of a prorate registered fleet. The authority of Sec. 301.277, subd. 1(2) is for licensing on an apportionment basis “fleets of motor vehicles and trailers or combinations thereof.” The Uniform Compact provides: “Sec. 16. Fleet. As to each contracting State, fleet shall include only those commercial vehicles which actually travel a portion of their total miles in such State. A fleet must include three (3) or more commercial vehicles, at least two (2) of which are motor vehicles.” Our conclusion is that both our statutes and the Uniform Compact treat “reciprocity” and “proration of registration” as separate and distinct concepts. Thus it seems reasonable to construe Sec. 301.277, subd. 3 as not applicable to licensing of vehicles of fleets that qualify for registration as fleets under the proration of registration provisions of the compact.

We do not overlook the provisions of Sec. 301.277, subd. 1(2) that agreements “may, under such terms, conditions and restrictions as the commission, deems proper, provide that owners and operators of motor vehicles and trailers operated in interstate or combined interstate and intrastate commerce in Missouri shall be required to pay registration and other fees on an apportionment basis.” However, our view is that defendants have construed this authority too narrowly in considering that operation of vehicles in combined interstate and intrastate commerce means only a trip in interstate commerce during which some freight is picked up at one point in Missouri and delivered at another point in Missouri. The compact (Sec. 73) describes such a trip as an “intrastate operation which is incidental to a trip of such vehicle involving interstate operation”; and permits it under its reciprocity provisions. However, under fleet proration registration, it is plainly stated (Sec. 54) that “each vehicle in the fleet may be operated in both interstate and intrastate operations in such state.” (We think this means the base state.) This is subject to the restriction made by Sec. 34 which we believe is intended to apply to the laws and regulations of contracting states which are applicable to all vehicles (no doubt including size, weight, speed, route permits, etc.). Therefore, we construe the statutory reference, which begins by referring to “fleets of motor vehicles * * * operated interstate or combined interstate and intrastate commerce”, to mean more than a single trip by one vehicle for both purposes on the same trip, but instead to have reference to the operations of the fleet vehicles in both kinds of operations in various trips at different times. The statute does not mention trips (as does reciprocity Sec. 73 of the compact) but instead refers to fleets of vehicles operated in combined interstate and intrastate commerce and to “owners” of motor vehicles operated in combined interstate and intrastate commerce. Therefore, our view is that fleet vehicles operated in interstate commerce on one trip and in intrastate commerce on the next trip are operated in combined interstate and intrastate commerce. Certainly Sec. 54 of the compact contemplates such operations, specifically stating that privilege.

This does not mean that vehicles of fleets based and registered in other contracting states may be operated in intrastate commerce in this state and all other contracting states. The compact provisions for registration of a fleet in its base state and in other contracting states are different. Sec. 56 provides for license plates to be issued by the base state for each vehicle of the fleet and for other contracting states to issue a special identification, which the parties call a decal. While privileges of operation on a decal are not directly involved in this case, the parties argue about it and evidence was received concerning it. We mention it to make it plain that we are not deciding that issue.

We do decide that Sec. 301.277, subd. 3 has no application to vehicles of fleets based in Missouri and registered under the proration of registration provisions of the Uniform Compact. The more miles such fleet vehicles travel in Missouri, whether on interstate or intrastate operations, the more of the annual license fee Missouri gets. Thus license revenue for this state is in proportion to Missouri highway use of all fleet vehicles based in this state, and also from such use by fleet vehicles of other compact states, while under straight reciprocity this state gets nothing from vehicles licensed in other states. It was the purpose of the Uniform Compact to provide a better system than straight reciprocity, with fairer distribution of fees both as to owners and the states, and we believe our construction herein made is in accordance with its purpose. We further hold that the provisions of restriction 3, of the Missouri Appendix to the compact, state the principle of Sec. 301.277, subd. 3 relating to straight reciprocity. Therefore our construction is that it does not prohibit vehicles of fleets based in this state and registered under the proration of registration provisions of the compact from operating in both interstate and intrastate commerce; and that its prohibition against “commercial motor vehicles transporting persons or property solely in intrastate commerce” does not apply to the operations of such fleet vehicles so used both in interstate and intrastate commerce.

The judgment and decree of the trial court is affirmed.

All concur except EAGER, C. J., not sitting.