author: HYDE, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Sterling HILL, Jr., Defendant-Appellant.
    No. 50115.
    Supreme Court of Missouri, Division No. 1.
    Oct. 14, 1963.

      John P. Haley, Jr., Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, James W. Steele, Sp. Asst. Atty. Gen., St. Joseph, for respondent.
   HYDE, Judge.

Defendant, charged under the Habitual Criminal Act (Sec. 556.280), was convicted of robbery in the first degree and sentenced to 25 years’ imprisonment. Secs. 560.120 and 560.135 (statutory references are to RSMo and V.A.M.S.). Defendant has appealed but has filed no brief so we consider all grounds stated in his motion for new trial made in accordance with Supreme Court Rule 27.20, V.A.M.R., which serve as assignments of error on appeal. (See also Rule 28.02.)

The first assignment is that the State’s evidence was insufficient to make a case against defendant, claiming insufficiency of identification, discrepancy in the amount of money claimed to have been taken with the amount recovered and failure to connect defendant with an abandoned car and shotgun found by the police. The following summary of the State’s evidence shows this assignment to be without merit.

A few minutes before midnight on December 11, 1962, Robert Eppstein, manager of a grocery, delicatessen and liquor store in Kansas City (closing time 1:30 A.M.), was in the store with a clerk, William Mick-ens, when two white men came in; the taller one with a sheer stocking over his head, holding a sawed-off shotgun, and the shorter one with a yellow scarf wrapped around his mouth which fell down when he talked. Defendant was identified as the shorter man by both Eppstein and Mickens at the police station later that night and at the trial. The man with the shotgun made Eppstein open the cash register and the shorter man took out the money. The taller man struck Eppstein with the shotgun when he said he could not open the safe. Eppstein then told him the safe was open and the shorter man took the money from it. The men made Eppstein and Mickens and three customers lie down in a narrow aisle on top of each other and the man with the shotgun said: “Don’t move for five minutes or we will blow your heads off.” Eppstein called the police as soon as he could get up. Defendant and his companion (who was also identified at the police station, as the taller man involved, by Eppstein and Mickens) were arrested later that night under circumstances hereinafter stated.

Officer Theisen, operating a police car, received a radio report of the robbery about midnight and soon saw two white men in a white Chevrolet, stopped about ten blocks south of the robbed store (particularly noticed because this was a colored area), who took off when he approached. Two other officers, who had also received radio reports, soon found the car abandoned at another location and found a nylon stocking and a yellow scarf in the car. A dog crew was called and the dog followed the scent from the car to a place where a shotgun with some loaded shells was found. The officers also found money under the left front door of the abandoned car and a number of bills outside. They followed a trail of bills to the south but the wind was blowing and some bills were scattered. A cab had been called to come to a house in the neighborhood and the police learned about this when the cab came to where they were in the street. The cab driver drove past the house and came back on instructions from police, reporting that he had seen two men start toward the cab from the house. Two-policemen then took the cab, drove to the house and defendant and his companion came out, approached the cab and were arrested. (These two men had gone to the-house and asked to use the telephone to call' a cab.) Two other policemen who followed' the cab on foot put handcuffs on them and searched them. Defendant had money stuffed in his pockets, under his jacket and in his clothing. A total of $1,519.47 was recovered ($2,526.48 was reported missing by Eppstein) ; bills in the amount of $1,-040.00 wrapped in a package with a bank deposit slip attached (which Eppstein said' he had put in the safe) were among those recovered, as was also a twenty-dollar bill with a note stapled to it (stating it was-from one customer to be delivered to another) which Eppstein had written, attached to the bill and placed in a drawer near the cash register. Eppstein had seen defendant open this drawer and this bill’ with the attached note was found in his possession.

Defendant makes three contentions concerning insufficiency of the evidence; the first that Eppstein based his identification-on having seen defendant in the store on-the Thursday or Friday preceding the robbery, when defendant had testimony indicating that he was in jail in Kansas City, Kansas. This contention is without merit for several reasons; first, Eppstein’s identification at the police station on the night of the robbery and at the trial was positive-on the basis of seeing defendant in the store at the time of robbery (as was Micken’s identification) ; second, defendant’s witness was indefinite about the time defendant got out of jail; third, Eppstein said he did not know what day he previously had seen defendant in the store only saying he had been there within the week prior to the robbery. The store’s customers were mostly Negroes so he particularly noticed a white customer. Defendant’s second contention as to identity is that Eppstein stated the bill with the note attached to it was •a twenty-dollar bill while one of the officers thought it was a ten-dollar bill. Another ■officer did not remember the denomination. 'The fact that the note written by Eppstein ■and attached to a bill was found in defend-ant’s possession that night was strong evidence of identity of defendant as one of the robbers. The fact that about $1000.00 of the money reported lost was not returned •does not indicate defendant was not one of 'the robbers, especially in view of the evidence as to bills being scattered in the ■street. Likewise defendant’s third contention, that the police dog was only able to lead the officers to a shotgun but not to defendant, does not show failure to connect him with the robbery, especially in view of the evidence showing defendant was found in the same block and arrested about the time the shotgun was found. All of these claimed discrepancies were matters for the jury to determine and we hold there was ample substantial evidence to make a case for the jury and to support their finding that defendant participated in the robbery.

Assignments 2, 3, 4 and 7 claim trial errors. Assignment 2 claims erroneous inflammatory language by the prosecuting attorney in his argument to the effect that “this shotgun was placed against the head,” saying this was outside the record. However, we find ample evidence in the record to justify such a statement. Miclc-ens said the shotgun was “right in my neck”. Eppstein answered “yes” when asked if he was put in fear “when this man was holding the shotgun against your head.” He had previously stated that the man put the shotgun on the head of a woman customer and told her “to get back or he would blow her head off.” He also said the man “swung the gun at my head,” •struck him with it and said “now, open the safe or I will blow your head off.” Assignment 3 claims error in restricting cross-examination of Eppstein as to the reason he was no longer employed at the store, suggesting that it had some connection with the amount of money reported lost with that recovered. “The trial court is permitted much discretion in determining and limiting the scope of cross-examination,” especially “as to collateral matters.” See State v. Spikes, Mo.Sup., 367 S.W.2d 515, 516, and cases cited. However, soon after the court sustained an objection to the question of whether there was any special reason for his leaving, the following question was asked and answered on re-direct examination: “Q. Mr. Eppstein, I haven’t the faintest idea of why you left out there, but would you tell the court and jury whether it had anything to do with the robbery or the loss? A. None whatsoever, the corporation was sold and the new owners took over and I was out of work.” We find no abuse of discretion in the court’s action. Assignment 4 complains of inadmissible evidence being improperly permitted but does not specify what evidence is meant and so failing to comply with Rule 27.20(a) preserves nothing for appellate review. However, we have carefully read the record, with our authority under Rule 27.20(c) in mind, and find no prejudicially erroneous rulings on admission of evidence.

Assignment 7 claims conflict between Instructions 1 and 4. Undoubtedly Instruction 2 was meant because Instruction 1 only told the jury that the Information was a mere formal charge and did not constitute any evidence of guilt. Instruction 2 authorized a verdict of guilty of first degree robbery if defendant made an assault on Eppstein with a dangerous and deadly weapon, “a sawed off shotgun”, and “took and carried away any money or property from his person, or in his presence and against his will, by force and violence to his person, or by putting him in fear of some immediate injury to his person,” etc. Instruction 4 was as follows: “The Court instructs the jury that all persons are equally guilty who act together with a common intent in the commission of a crime, and a crime so committed by two or more persons jointly is the act of all and of each one so acting. The Court instructs the jury that when two or more persons knowingly act together in the commission of an unlawful act or purpose, then whatever either does in furtherance of such unlawful act or purpose is in law the act and deed of each of such persons.” These instructions are not in conflict but instead each complements and explains the other so that together they are in harmony. See Sec. 556.170; State v. Butler, Mo.Sup., 310 S.W.2d 952; State v. Chernick, Mo.Sup., 278 S.W.2d 741. Defendant also says there was no evidence to support these instructions but the facts shown by the evidence, hereinabove state-ed, constitute ample substantial evidence to support them.

Assignments 5, 6 and 8 concern the charge under the Habitual Criminal Act; assignment 5 claiming error in permitting the amended information making this charge to be filed at the commencement of the trial, assignment 6 claiming no prior conviction was proved, and assignment 8 based on failure of Instruction 6 to require the jury to fix the punishment. However, the record showed that defendant’s counsel had been given notice of the State’s intention to file the amended information five days before it was filed and we hold it was proper to permit its filing. See State v. Stumph, Mo.Sup., 349 S.W.2d 954, 955; State v. Wilson, Mo.Sup., 349 S.W.2d 934, 936. As to assignment 8, the purpose of the amended Habitual Criminal Act (Laws 1959, Senate Bill 117) was to prevent the criminal record of the defendant from being presented to the jury when he did not testify. Therefore, the court fixes punishment, when the Act applies, and it is well settled that this is valid and proper procedure. State v. Brownridge, Mo.Sup., 353 S.W.2d 715; State v. Donnell, Mo.Sup., 351 S.W.2d 775; State v. James, Mo.Sup., 347 S.W.2d 211; State v. Wolfe, Mo.Sup., 343 S.W.2d 10, certiorari denied 366 U.S. 953, 81 S.Ct. 1912, 6 L.Ed.2d 1246. Thus assignment 8 must be considered with assignment 6 which is that the State failed to show any prior conviction of defendant. The only evidence produced by the State on this issue was a “Certified Transcript of Serial Record” of the Department of Corrections showing a complete description of Sterling Hill, Jr., together with two photographs of him and his fingerprint identification record. We have held such records admissible in evidence. State v. Austin, 113 Mo. 538, 544, 21 S.W. 31; State v. Dalton, Mo.Sup., 23 S.W.2d 1, 5; State v. Peterson, Mo.Sup., 305 S.W.2d 695, 697; State v. Romprey, Mo.Sup., 339 S.W.2d 746, 753; State v. Clark, Mo.Sup., 360 S.W.2d 666, 668; see also State v. Worden, 331 Mo. 566, 56 S.W.2d 595, 598, and Sec. 216.040. We consider this sufficient to sustain a finding identifying defendant as the person therein described. See State v. Baugh, Mo.Sup., 323 S.W.2d 685, 691. However, while this also was sufficient to show defendant was received at the penitentiary and was discharged on commutation of a two-year sentence, after serving from October 21, 1957 to December 1, 1958, it did not prove his conviction of an offense making Sec. 556.-280 applicable. The record shows his offense “Burglary” and County “Polk,” but does not show what court, leaving it indefinite whether his residence was Polk County or whether he was convicted and sentenced in Polk County.

We said in State v. Hagerman, Mo.Sup., 244 S.W.2d 49, 53: “Unquestionably, in prosecutions under the Habitual Criminal Act the records of other convictions and sentences must be properly authenticated and shown, State v. Hendrix, 331 Mo. 658, 56 S.W.2d 76, and the identity of the accused as the person convicted must be established, 24 C.J.S., Criminal Law, § 1962, p. 1157 [now 24B, p. 484], and it is difficult to understand why the state did not so establish these facts as to leave no possible room for objection. However, there is no statute in Missouri prescribing how proof of the former convictions shall be made in a habitual criminal case. The best evidence, of course, is the original record or a duly authenticated copy of the record, plus evidence identifying the accused as the convict, even though such evidence is not conclusive.” As to proof of former conviction, the record of the former conviction is “conclusive of that matter.” State v. English, 308 Mo. 695, 274 S.W. 470, 473. Since it appears from the record in evidence most likely that defendant previously was convicted of a felony in a circuit court of this state so that the State promptly ■can produce the record thereof, and there being no error in the trial of the issue of defendant’s guilt herein, we think it not necessary in this case to require an entire new trial, as was done in State v. Young, Mo.Sup., 366 S.W.2d 386, where claimed previous convictions were in another state. Sec. 556.280 requires the issue of prior conviction, sentence and imprisonment to “be heard and determined by the trial judge •out of the hearing of the jury” and the findings thereon made and the punishment •determined by the judge. The situation herein is similar to one in which sentence has not been pronounced and final judgment entered prior to appeal. See State v. Bledsoe, Mo.Sup., 249 S.W.2d 457, and cases cited, which was remanded for proper procedural steps required for sentencing. It is even more like Wilfong v. Johnston, USCA 9th, 156 F.2d 507, 510, and In re Bonner, 151 U.S. 242, 14 S.Ct. 323, 38 L.Ed. 149, where the conviction was valid but the sentence was void. We have examined the record as required by our Rules 28.02 and 28.08 and find it sufficient with respect to the sufficiency of the information and verdict. Therefore, as said in In re Bonner (14 S.Ct. l. c. 326) : “[Wjhere the conviction is correct, and the error or excess of jurisdiction has been as stated (in sentencing), there does not seem to be any good reason why jurisdiction of the prisoner ■should not be reassumed by the court that imposed the sentence, in order that its defect may be corrected.” (Parenthetical insertion ours.)

Therefore, the sentence herein is declared void, the judgment is reversed and the cause remanded with directions to the court to cause the defendant to be brought before it to hold a hearing on the issue of former conviction of defendant and if proved to pronounce sentence and judgment against defendant taking all proper procedural steps required therefor by law and the rules of this court but in the alternative if the issue of former conviction be found in favor of defendant to grant him a new trial on all issues.

All concur.


source: Caselaw Access Project

author: DALTON, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Charles W. GARTON, Appellant.
    No. 49570.
    Supreme Court of Missouri, Division No. 1.
    Sept. 9, 1963.
    Rehearing Denied Oct. 14, 1963.

      No attorney for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Theodore C. Beckett, Sp. Asst. Atty. Gen., Kansas City, for respondent.
   DALTON, Presiding Judge.

On March 16, 1962, an amended information was filed in the Circuit Court of Platte County, Missouri, charging defendant Gar-ton, under the Habitual Criminal Act, with-the crime of robbery in the first degree by means of a dangerous and deadly weapon. See Secs. 560.120 and 560.135 RSMo 1959, V.A.M.S. and Sec. 556.280 RSMo, as amended Laws 1959, S.B. No. 117, Sec. 1, V.A. M.S. The cause was transferred to Andrew County for trial. Defendant appeared in open court with counsel of his own choosing and waived formal arraignment and entered a plea of “not guilty.” The amended information charged two prior felony convictions, to wit, Grand Larceny and Assault With Intent to Commit Murder and the court so found. After the jury returned a verdict of guilty, as charged in the amended information, the court assessed defendant’s punishment at life imprisonment in the Missouri State Penitentiary. A motion for a new trial was filed and overruled and defendant was permitted to appeal as a poor person and a free transcript has been provided.

We shall examine the assignments of error in defendant’s motion for a new trial. Supreme Court Rule 28.02, V.A.M.R.

The charge in question was based upon defendant’s alleged participation, as a principal, along with Joe Andrews, in the robbery of Mike Jarowitz, the Cashier of the Farley State Bank of Farley, Platte County, Missouri, on September 1, 1961, when some $13,613 in money, the property of the Farley State Bank, in the custody of Jaro-witz as cashier, was taken and carried away. Jack Streater, a witness for the State, participated in the robbery by driving the get-away car and sharing equally in the proceeds of the robbery.

The State’s evidence tended to show that on said date, at about a quarter after nine in the morning, a 1960 white Pontiac automobile was seen to approach the Farley State Bank in Farley, Missouri, at a slow rate of speed. Just as the automobile got to a point in front of the bank, two individuals, later identified as defendant and Joe Andrews, jumped out of the car and came into the bank. Defendant was carrying a canvas bag and both he and Andrews had a type of make-up on their faces and each wore gloves, a dark hat, dark glasses and a khaki shirt and trousers. Both men displayed snub-nosed revolvers and one of them advised the bank employees that, “This is a holdup, everybody do as we say and nobody will get hurt.” Jarowitz and other employees were ordered into the bank vault. Defendant accompanied Jarowitz into the bank vault and cautioned him not to reach for a gun. He also ordered Jaro-witz to place the bank’s currency in the canvas bag, which was done. Defendant took the currency and a sack containing 645 silver dollars with him. The two robbers left the bank together and entered the white Pontiac, which Jack Streater held in readiness to provide a way of escape.

Jarowitz identified defendant as one of the robbers and Joe Andrews as the other. Defendant was also identified as one of the robbers by June Graham, a bookkeeper, and by Láveme Taulbee, a secretary at the bank.

After defendant and Andrews were picked up, Streater drove the Pontiac out to a place about two miles away where Sweater's DeSoto had been parked. All then abandoned the Pontiac and entered Sweater's DeSoto and he drove on to a place where a metal box containing soft drinks had previously been placed near a certain cottonwood tree. When the robbers left Sweater’s car, they took the proceeds of the robbery with them and went into a wooded area. Streater then went to his farm home and took his wife to her work in Kansas City and he went on to his place of employment. After work that evening he returned to his farm and later that night he returned to the cottonwood tree, picked up defendant and Andrews and took them into Kansas City. The robbers told Streater that they had obtained thirteen thousand, six or eight hundred dollars. They split up the currency while they were in the woods, and left some 600 dollars of silver in a hollow tree. Defendant was given his full share, but Andrews and Streater were to divide later. Streater was to get one-third, as he subsequently did when the money was divided at an apartment in Kansas City. Streater then took $3,000 of Andrews’ share back to the farm that night. The next day Andrews came out and got $1,000 of the money and buried or hid the balance. After the robbery, Streater continued working at his job at the Butternut Bakery for about three weeks and then he took a trip to Bennett Spring and on to Miami, Oklahoma, before he returned to his rented farm some fifteen miles from Farley, Missouri.

On September 30, 1961, Streater went to Kansas City to get a couple of sacks of coal. About 5 p. m. he saw two police cars parked underneath a bridge carrying an expressway over Southwest Boulevard. He pulled up to ask them where he could find a coalyard. He had a hunting knife on his belt and the officers, in some manner, saw the knife and, after telling him where a coalyard was located, they arrested him, took the knife and searched the car, wherein they found $2,530 of the bank’s currency in a paper sack in the glove compartment. Streater told them the money was from gambling, working and savings. Some three weeks later, he admitted his part in the robbery and took several officers to the cottonwood tree and wooded area referred to. The officers searched for the hollow tree and found it and an olive-colored bag. The bag contained 637 silver dollars, a sawed-off shotgun and a snub-nosed .38. The shotgun, with the barrel and stock sawed off, appeared to be similar to the shotgun that had been left in the white Pontiac while the robbery took place. Streater identified defendant at the trial as one of the men with whom he had cooperated in the robbery at the Farley State Bank on September 1, 1961.

The evidence further tended to show that, prior to August, 1961, Streater resided at 10 East 32nd Terrace in Kansas City, Missouri, near where Andrews and the mother of Streater’s wife resided. Streater subsequently rented a farm on Route 2, Park-ville, and took possession of the house and began repairs sometime in August. The bank robbery was first mentioned to him by Andrews about the middle of August. The conversations began at Streater’s apartment in Kansas City and were later carried on in Andrews’ apartment. Andrews had visited the Farley State Bank about the middle of August and had asked to see one of the Farleys, who was not present. The robbery was first scheduled for the 25th of August and Streater was to receive a minimum of $1,000 or more depending on what they got. Defendant was present when the plans were discussed and he told Streater “there wouldn’t be anything to it.” Andrews said the robbery had been planned about four months and that Streater didn’t need to be within ten miles of the bank when it was robbed, since Streater, using his own car, was just to pick up defendant and Andrews at a designated spot. Later, defendant and Andrews said they would get another car and let Streater know when they were ready to proceed. When they did notify him they said they wanted to use Streater’s car to obtain a get-away car, because Andrews’ car was an old ’48 Nash and they didn’t want to drive it; however, they got a car themselves, a white 1960 Pontiac. It was taken from the Plaza in Kansas City to Streater’s farm on Tuesday or Wednesday before the 25th of August. On the 25th, Streater picked up defendant and Andrews at Andrews’ apartment in Kansas City, about 10:30 a. m., and brought them out to Streater’s farm. They then applied “a pancake make-up” to their faces. A place was agreed upon where Streater was to wait for them and pick them up in his DeSoto when they returned from the bank.

Defendant and Andrews left Streater’s farm about 4:30 p. m., in the white Pontiac, each carrying a .38 snub-nosed revolver. At about 4:45 p. m. Streater went over to the designated spot to wait. When they returned they told him that it looked like all the town was there and they didn’t think it was “a good deal" to proceed. Both cars were then driven back the farm and the Pontiac was parked behind a garage in a bunch of weeds. Later, Streater took defendant and Andrews back to Kansas City in his DeSoto. Defendant was angry because the robbery didn’t “come off,” since he had come in from Hobbs, New Mexico and had spent considerable money. Defendant talked of leaving Kansas City, but Andrews wanted him to stay and try agnin the following Monday. Defendant said he would have to call his wife “and find out.” On Wednesday or Thursday of the following week, between the 25th and the 1st,, Streater saw the defendant in Andrews’ apartment in Kansas City and defendant and Andrews both advised him that the robbery was set for Friday morning, September 1. It was decided that the robbery would take place as soon as the bank opened instead of waiting until evening. In the meantime Andrews came to the farm and moved the Pontiac down near a certain bridge and Streater went along in his DeSoto to bring Andrews back to the farm. The Pontiac was parked about two miles from Farley. Andrews then went back to Kansas City in his own car and, at 7 o’clock the following morning, September 1, 1961, Streater went into Kansas City and picked up defendant and Andrews at Andrews’ apartment, where he found them partially “made-up” with their pancake make-up, and spraying their hair. They then “headed for” the parked Pontiac in Streater’s De-Soto. When they reached the place where the Pontiac was located, they parked the DeSoto and put the guns in an “army-colored” bag and took the two snub-nosed .38’s, all loaded, and Streater drove the white Pontiac into Farley where, as stated, he let the two others out in front of the bank and came back a few minutes later and picked them up as they were leaving the bank after the robbery. Streater had met defendant in Kansas City through Andrews in June or July, 1961, but he saw defendant five or six times between August 15 and September 1, 1961.

We need not review defendant’s evidence further than to say his defense was an alibi, to wit, that he was in Hobbs, New Mexico on September 1, 1961.

No issue has been raised as to the sufficiency of the evidence to make a case for the jury; however, we find it sufficient.

In the motion for a new trial the defendant states that “the Court erred prejudicially in consistently permitting sundry State’s witnesses to testify as to the plans and activities of the defendant and others concerning a ‘conspiracy’ and abandoned plan to rob the Farley State Bank on August 25, 1961. The Court further permitted testimony of conversations between witness Streater and one Joe Ward Andrews, remote in time, out of the presence of this defendant and not binding upon him, and concerning matters unrelated to the trial issue herein joined.”

This assignment does not point out with particularity the precise testimony objected to and it does not, therefore, comply with Supreme Court Rule 27.20; however, a careful reading and re-reading of this entire record tends to show that there was no abandonment of the original plan to rob the Farley State Bank, but only that the time for the robbery was delayed to a more opportune time. The date for carrying the plan into execution was incidental to the plan. The defendant did not necessarily stay in Kansas City during the entire interval between August 25 and September 1, but there was no evidence of abandonment of the original plan, to wit, to rob the particular bank. It is true that a few days after the 25th, when a new date had not been agreed upon, Streater became nervous about the white ’60 Pontiac that was parked in the weeds behind his garage. He told Andrews that he was going to get rid of it by calling the State Patrol and telling them a car had been left on his farm and that he knew nothing about it. Andrews said, “No, wait”, that defendant (Garton) was coming back and was “in on it” for Friday, September 1, as soon as the bank opened. Accordingly, Streater drove into Kansas City on that date and got defendant and Andrews and brought them out to the place where the white Pontiac, which was to be used in the robbery, had been parked by Andrews. The DeSoto was parked there and all got in the white Pontiac and “headed” for the bank.

Since it appears from the record that there was a definite and continuing conspiracy to rob the particular bank and that the plan was, with reasonable promptness, carried into execution, all of the statements and acts of the co-conspirators, made in the furtherance of the conspiracy, were properly admitted in evidence for the purpose of showing the commission of the offense for which the conspiracy was designed. State v. Johnson, Mo.Sup., 286 S.W.2d 787, 792[6-10]; State v. Rosegrant, 338 Mo. 1153, 93 S.W.2d 961, 974[27]; State v. Deyo, Mo.Sup., 358 S.W.2d 816, 823[V].

Another assignment of error in the motion for a new trial is that, “the Court erred in failing to give, sua sponte, an accomplice instruction with the testimony of witness Streater being the most formidable nexus in placing the defendant as a participant in the crime charged. An accomplice instruction was thus a part of the law of this case.”

Again we have an assignment that does not comply with Supreme Court Rule 27.20 requiring errors to be set out specifically and in detail. The motion in no way indicates the precise instruction the defendant would have had the court to give and, therefore, the entire allegation of error is vague and uncertain; however, if we assume, in the absence of a more definite statement, that the instruction, which defendant asserts the court should have given “sua sponte”, was "the usual and ordinary cautionary instruction” often given to guide a jury in determining the weight and value of the testimony of an accomplice, if there is such a thing as a usual and ordinary instruction, then we may say (1) that the record fails to show that the defendant made any request for such an instruction; and (2) that the court was not bound of its ■own initiative to instruct upon the subject. In this case such an instruction concerning the jury’s consideration of Streater’s testimony would have been purely cautionary and collateral to the principal issue involved in the case. Such an instruction does not concern a question of law necessary for the jury’s information in giving their verdict. See State v. Mahan, Mo.Sup., 226 S.W.2d 593, 595[2], Further, in this case the defendant was positively identified as one of the robbers by three of the employees of the bank who were witnesses in the case and testified before the jury. No such an instruction, as claimed, was required to be given. State v. Emrich, Mo.Sup., 250 S.W.2d 718, 725[9]; State v. Turner, Mo.Sup., 272 S.W.2d 266, 271 [13]; State v. Rutledge, Mo.Sup., 267 S.W.2d 625, 626[5-6].

In the case of State v. Chaney, Mo.Sup., 349 S.W.2d 238, 245, the court said: “As to any question collateral to the main issue, it is reasonable and logical to require submission of an instruction on the subject by-counsel for defendant who has prepared and conducted the defense. Otherwise, too great a burden would be placed on the trial judge by requiring him to try to think of all possible collateral issues and prepare instructions on them. The duty rests on counsel for the defendant to aid and not ambush the court. See State v. Conway, * * * 241 Mo. loc. cit. 288, 145 S.W. loc. cit. 447. Therefore, counsel should be required to call to the attention of the court any collateral question considered to be of importance to the defense by offering an instruction covering it.”

No such instruction was requested. The assignment of error is overruled.

Defendant further assigns error on the giving of Instruction No. 6 to the effect that all persons are equally guilty, who act together with a common intent in the commission of a crime. The instruction further states the law as to “aiders and abettors.” Defendant says that “Such an instruction, while a familiar principle in the abstract, was not applicable to the State’s charge against this defendant”; and that “the instruction improperly charged the jury on the law of co-conspirators, when the State’s theory and verdict directing instruction had already been set forth in Instruction No. 5, * * * wherein the defendant was to be found guilty as a principal” under the facts submitted.

In the information and by Instruction No. 5 the cause was charged and submitted against defendant as a principal, as is set forth by Sec. 556.170 RSMo 1959, V.A.M. S., providing that an accessory to a felony may be charged, tried, convicted and punished in the same manner, as a principal in the first degree.

Essentially, Instruction No. 6 was a cautionary instruction which further contained the following statement: “However, the mere presence of one at or near the scene of a crime, does not render that person liable as a participator therein. If one is only a spectator, innocent of any unlawful act or criminal intent, and does not aid, abet, assist, advise or encourage another or others in the commission of a crime, that person is not liable as a principal or otherwise, and should be acquitted.”

We find no prejudicial error in the giving of Instruction No. 6, nor do we find any conflict between this instruction and the charge and submission of the cause against defendant as a principal. While the evidence tends to show that defendant and Andrews were principals in the mentioned robbery, it was not error for the court to give an instruction as to “aiders and abettors.”

In the case of State v. Lunsford, Mo.Sup., 331 S.W.2d 538, 540, 541, this court said: “The evidence was quite convincing that the defendant was present and participated in the offense. In a practical sense, each was an aider and abettor because the evidence tended to prove that the defendant and his companion both committed overt acts during the progress of the assault which resulted in the death of Wesley Hu-son.

“Even though the evidence tended to prove that the defendant was the actual killer, it is not inconsistent or misleading for the state to instruct on the theory that the defendant was an aider and abettor as well as the actual killer because the greater participation in the offense includes the lesser and the legal effect is the same. State v. Millsap, 310 Mo. 500, 276 S.W. 625, 628[5].”

On the record before us, Instruction No. 6 did not impose a greater or different responsibility on defendant than justified by the law and the evidence. Instruction No. 6 may have been unnecessary, but the defendant could not have been prejudiced by it. The assignment of error is denied.

Only one further assignment of error appears in the motion for a new trial. It is as follows: “The Court erred in refusing to permit the defense to examine the signed statement of witness Jack Streater after he had testified against this defendant.”

The record discloses that during the cross-examination of State’s witness Streater, when it appeared that he had given a written and signed statement to Sgt. Laurie of the State Highway Patrol, the defendant’s counsel promptly made an oral demand on “the prosecuting attorney” for “a copy or review” of the statement. Defendant’s counsel stated that the demand was made under the federal rules of procedure and referred to the case of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed. 2d 1103, which involved rules of procedure and evidence in the federal courts. Counsel stated that he wanted the statement for the purpose of impeachment so that the “witness could not change his story”; and that counsel had no knowledge of the existence of such a statement until the fact was developed on cross-examination.

There was evidence that the statement concerned the facts, as stated by Streater, with reference to the robbery of the Farley State Bank on September 1, 1961; and that it was the only written statement Streater had given and signed. There was no evidence tending to show that Streater had ever made any statement inconsistent with his testimony at the trial. The court denied the request and counsel continued with the cross-examination of the witness.

It will be noted that the assignment of error in the motion for a new trial merely asserts that the court erred in refusing defendant’s request. It does not set forth any specific ground for the asserted error. Supreme Court Rule 27.20; State v. Sheard, Mo.Sup., 276 S.W.2d 191[1, 2]. In the motion for a new trial, after the stated assignment of error, the motion does contain statements tending to show that it was defendant’s theory that the reasons, which the court assigned for denying the oral request for the production of the mentioned statement, were in fact erroneous. However, if the trial court reached a correct decision on the issue presented it is immaterial that the court may have assigned an erroneous or insufficient reason for the action taken. City of St. Louis v. Evans, Mo.Sup., 337 S.W.2d 948, 954[2]; Brown v. Moore, Mo.Sup., 248 S.W.2d 553, 556[4-6].

Defendant has failed to establish reversible error in this regard, first, for the reason that this assignment of error does not set forth any specific ground or reason why the court erred in refusing to require counsel for the State to produce, for defendant’s inspection, Streater’s written and signed statement concerning happenings in connection with the robbery on September 1, 1961. State v. Gilliam, Mo.Sup., 351 S.W.2d 723, 727[12], In the second place the application was oral and there was no evidence in the record tending to show that there was any conflict between Streater’s statement and his testimony at the trial, or that the statement would have been admissible for any purpose. Under a somewhat similar situation, this court in the case of State v. Redding, Mo.Sup., 357 S.W.2d 103, 109[17], stated:

“We are unable to tell from the motion for a new trial or the oral request whether reliance was placed on § 510.030 appearing in our Civil Procedure, or on Criminal Rule 25.19. The latter presupposes the issuance of a subpoena duces tecum, and none was shown here. In State v. Kelton, Mo., 299 S.W.2d 493, the court said, loc. cit. 497: ‘Assuming, without deciding, that defendant would have the benefit of Section 510.030 RSMo 1949, V.A.M.S., pertaining to the production of documents and papers in civil cases, she did not bring herself within the terms of the statute. The application was oral and there is no showing that the written statement contained evidence material to the merits or defense of the action. “A mere suspicion that it contains such evidence does not warrant an order for its production.” State ex rel. Page v. Terte, 324 Mo. 925, 25 S.W.2d 459, 462[2, 3]. The production of books and papers under the statute “is not authorized upon the possibility of the impeachment of witnesses or for prying into an adversary’s preparation for trial.” State v. McDonald, 342 Mo. 998, 119 S.W.2d 286, 289[6].’ See also State v. Brown, 360 Mo. 104, 227 S.W.2d 646. And a somewhat analogous situation was discussed very recently in State v. Crayton, Mo., 354 S.W.2d 834.”

The assignment of error is overruled.

We have further reviewed those record matters not required to be preserved in the motion for a new trial, which matters we examine irrespective of whether they are questioned in the motion (Supreme Court Rule 28.02), and we find no error therein prejudicial to defendant.

The judgment is affirmed.

All concur.


author: HOUSER, Commissioner.

text:
    Rebecca Ann TILTON, Respondent, v. Edward WOODS et al., Appellants.
    No. 49736.
    Supreme Court of Missouri, Division No. 1.
    Sept. 9, 1963.
    Motion for Rehearing or to Transfer to Court En Bane Denied Oct. 14, 1963.

      Baker & Baker, by Frazier Baker, Fulton, for appellants.
    John M. Cave, Fulton, T. E. Lauer, Columbia, for respondent.
   HOUSER, Commissioner.

Petition for a judicial declaration that a written contract affecting a 651-acre farm in Callaway County was terminated and canceled by a subsequent release and quitclaim deed; that plaintiff is the sole owner in fee simple absolute and that defendants have no right, title or interest in the real estate arising out of the contract, and to enjoin defendants from asserting claim to the premises thereunder.

Plaintiff is Rebecca Ann Tilton, who acquired the farm in 1944. Defendants are Edward and Anna Woods, husband and wife, parties to the original farm contract; their married daughter Darlene and Darlene’s husband and minor children; Walter and Charlotte Woods, minor children of Edward and Anna, and all future, unborn and unknown heirs of the body of Edward and Anna. Defendants’ answer attacked the validity of the release on the ground that it was obtained by misrepresentation,, fraud and duress and that it was not supported by a valuable consideration. By counterclaim defendants sought to have the release and quitclaim deed declared void, or construed as limited and not absolute in effect, and asked for damages for breach of contract. At trial the counterclaim was amended to allege mistake in the execution of the release and quitclaim deed and to pray for reformation or construction of the instruments to conform to defendants’ version of the meaning and intention of the parties.

Tried as an equity suit the trial judge found the issues for the plaintiff and against the defendants, sustained the release and quitclaim deed, canceled the written contract, declared that defendants had no right, title or interest in the farm except a leasehold interest soon to expire, and enjoined defendants in accordance with plaintiff’s prayer. Defendants have appealed.

From 1945 to 1957 Rebecca rented the farm to three successive tenants, each of whom testified she promised to will the farm to him -when she died if he would farm the place properly. In 1957 Rebecca, then living in California, wrote a letter to her nephew, Edward Woods, who with his wife Anna owned and was operating a farm in Shelby County, Missouri, proposing the rental of her farm to Edward as long as Rebecca lived stating that upon her death Edward would “get” the farm, upon his promise not to sell but to let the farm remain in his family. Rebecca told Edward and Anna by letter that she had already made a will to that effect. The property was worth $120,000 at that time. Edward and Anna went to California to discuss the matter with Rebecca. The Woods made it plain to Rebecca that they would not move onto the Callaway County farm “just to rent the place” and insisted upon a document signed by her, giving Edward and Anna and their heirs the right to the farm upon Rebecca’s death,, so they “would have something to go on * * * a paper or something to make her word good.”

Rebecca came to Missouri and on November 21, 1957 Edward, Anna and Rebecca entered into two contracts. One of them, a “will contract,” recited Rebecca’s ownership of the farm; her lack of descendants; her desire to keep the farm in her own family as long as possible; that Edward was the only nephew or niece willing to rent the farm; and that if Edward leased the farm it would be necessary for him to buy additional equipment, machinery and livestock. In consideration of Edward agreeing to lease the farm on Rebecca’s terms and conditions during her lifetime in the manner she desired, the document recited that Rebecca had theretofore made and executed her last will and testament “devising said farm to my nephew, Edward Woods and Anna Woods, his wife, and to the heirs of their body.” Edward and Anna, in consideration of the devise by the will, were obligated to move on the farm and operate it in the manner Rebecca wanted it farmed during her lifetime, and the lifetime of her ex-husband, Hugh Tilton. The document also contained an agreement by the Woods to keep the buildings, etc., in good repair, and a right on Rebecca’s part to cancel the agreement on failure of the Woods to manage the farm properly or to make repairs.

The other contract executed November 21,1957 was a 5-year farm lease to run from March 1, 1958.

The Woods believed that Rebecca had made a will as represented. Relying on the obligations assumed by Rebecca in the will contract they moved onto the Callaway County farm, bought additional machinery, farmed and remained in possession until the time of trial in November, 1961. In fact Rebecca had not made any such will, and at no time thereafter did she make any will in favor of the Woods or their bodily heirs.

The Woods had the will contract recorded. Later Rebecca applied to a bank for a $10,000 loan on the farm, which was turned down, apparently on the ground that the will contract constituted a “lien” on the land. Between February 3 and March 5, 1959 Rebecca wrote Edward and Anna a series of nineteen letters,, complaining that the recording of the contract and placing of a lien on her farm put a cloud on the title, kept her from managing the farm, borrowing money, selling timber, dealing with the state highway department, etc., as she might wish; denying the right of the Woods to put a lien on her farm, and repeatedly and forcefully demanding that the will contract be “taken off the record,” canceled and released so that she could proceed to’ get the loan. No agreement on her demands was reached by correspondence. Rebecca returned to Missouri and on March 11, 1959, in company with her attorney, went to the Callaway County farm where she demanded that the Woods sign two instruments, previously prepared by her attorney — a release and a quitclaim deed. There was testimony that Rebecca made some “pretty wild * * * pretty rough” statements and threats. Edward testified she said he would not live very long if the Woods did not sign the papers and there was testimony that Rebecca’s statement was said in a serious manner and not as a joke. Edward believed that Rebecca was “capable of that sort of thing.” In spite of Rebecca’s insistence Edward and Anna did not sign the papers that evening. Rebecca stayed all night at the farmhouse with the Woods and for several days and nights thereafter. The Woods took the unsigned papers to' their own attorney and sought his advice. On March 16, 1959 Rebecca, Edward and Anna appeared in the office of Rebecca’s attorney, where the release was executed by all three of them and the quitclaim deed was executed by Edward and Anna.

The release referred to the contract of November 21, 1957 and recited that the parties thereto “now desire to cancel said Contract and render the same void, inoperative and of no effect.” For a recited consideration of $10 and other valuable considerations the parties agreed that the contract “is hereby canceled, and the same shall become void, inoperative and of no effect from and after the 11th day of March, 1959,” and agreed that neither of the parties “is now indebted to the other for any cause whatsoever arising out of the contract dated November 21, 1957,” and each party agreed “to release, indemnify and save the other party harmless from all further liability under said Contract.” At the request of Anna and before it was signed the following words were added to the release as originally prepared: “said release being made to enable the party of the first part to borrow money on the premises.” The quitclaim deed, in conventional form, quit-claimed the farm to Rebecca, her heirs and assigns, forever, “so that neither [Edward, Anna] nor their heirs * * * shall or will hereafter claim or demand any right or title to the aforesaid premises or any part thereof, but they and each of them shall, by these presents, be excluded and forever barred.” The deed also recited that it was made “in full release and satisfaction of a certain Contract dated November 21, 1957, by and between Rebecca Ann Tilton * * * and Edward Woods and Anna Woods * * * which contract is recorded in [book and page], said release being made to enable the said Rebecca Ann Tilton to borrow money on the premises(The last above italicized matter was added in the attorney’s office at Anna’s request before she would sign the quitclaim deed.) No money or other property was paid to Edward and Anna for the release or quitclaim deed.

On the same day, March 16, 1959, a one-year lease of the farm from Rebecca to Edward, ending March 1, 1960, with a right of renewal in Edward for an additional three years, was prepared in the lawyer’s office, in terms almost identical to the previous five-year lease. This lease was signed by Rebecca about March 24, 1959, shortly before Rebecca returned to California.

The principal question on this appeal, whether the release and quitclaim deed were unconditional and effectively bar defendants’ rights under the will contract, must be answered in the affirmative. The auxiliary question, whether these instruments must be reformed to give them a conditional and limited effect, leaving the will contract in force but enabling Rebecca to borrow money by mortgaging the farm, must be answered in the negative.

These instruments are plain and unambiguous on their face and absolute in form. The intention of the parties to abrogate, terminate and cancel the farm contract is manifested by positive language. The underlined material, instead of having the limiting effect contended for by appellants, expresses nothing more than a motive for their execution.

Pertinent excerpts from the series of letters written by Rebecca between February 3 and March 5, 1959 and the oral testimony of Edward and Anna with respect to the statements of Rebecca as to the effect of these instruments follow:

In the letter of February 3 Rebecca said, “If you and Ann want my farm when I pass out you get that lien off right now and don’t ever put anything like that on again.” On February 7 she said, “If you and Ann gets the farm you sure will have to cooperate with me. Get that lien off the record * * * You get that released right away or you will wish you had.” February 9: “* * * You are going to take that contract recorded lien off the record and return to me by return mail or you and Edward can’t expect to get the farm after I pass on — not if you are going to try to make me all kinds of trouble with you. You better not try to take advantage of me or you are the looser.” February 14: “You have tryed to take advantage of me which will not be to your gain. * * * If you don’t trust me without putting a lien on my property you don’t deserve the farm or any other estates of mine. I trust you. Why can’t you trust me. * * * I am going to let you take me to court and you will get the lien off permanently forever. Not temporarily like your attorney wanted to do.” February 18: “I’m counting on going to court for sure unless you release the lien (permanently)On February 24 Rebecca sent quitclaim deed forms for execution, saying: “I have had my final papers and will fixed so that who ever puts a lien or contract recorded against my farm is barred indefinitely against claiming my farm or any part of the farm or from any part of my estate (ever) when I die. Nobody gets nothing. My farm * * * is being given away while I am living. * * * When I die no one gets anything.” February 25: “You will have to trust me * * * and without a [lien or recorded contract against my property], * * * So if you put a claim, lease, or recorded contract recorded against my title you jep-ardize you getting my farm ever. When you put the lien on my title or put your lien on record at recording office Fulton you canceled your right to my farm and other estates.” February 26: “You will have to trust me without a lien or contract recorded * * * if you stay on my farm. (And I mean it.)” February 27: “There has never been any one as mean to me in my whole life as you and Edward has treated me by sneaking on the lien.”

In their answering letters the Woods denied they had put a lien on the farm; suggested to Rebecca that “maybe if you were here we could have the contract changed so you could get your loan”; that if Rebecca did not want the Woods to run the place she could pay them $3000 for their expenses and trouble in moving and “Then we could cancel all contracts and we would move back.” On February 17 Edward wrote her: “Was over to Fulton. I found out that contract can never be taken off record. It can be made worthless. So get yourself back here. We will settle it some way. That contract stays on record unless we cancel all contracts including the farm contract.”

Edward and Anna testified that Rebecca told them, both before and at the time these instruments were executed, and that the Woods understood, that the release and quitclaim deed were made in order to enable Rebecca to get a loan, and “nothing else,” that in other respects the agreement that the Woods and the heirs of their body would “get the farm” after Rebecca’s death remained the same; that Rebecca stated that she still intended and wanted the Woods to get the farm and “the quitclaim wouldn’t have nothing to do with that part of it, only for the sole purpose so she could borrow money.” Anna testified that Rebecca said, and the Woods understood, that the Woods and their heirs would “still have the same rights” that they had before the documents were signed; that the Woods believed and relied upon Rebecca’s statements, and that the material above italicized was inserted in the two instruments to effect this result; that in executing the instruments it was not the Woods’ intention to cut themselves or their heirs out of their interests in the land or of making a gift to Rebecca of their rights or those of their children; that Edward’s understanding was that the will contract would “still be good.”

But, inconsistently, Edward testified that it was his understanding that Rebecca wanted the will contract eliminated completely ; that Rebecca thought that it would be canceled, and “No doubt she aimed to cancel the whole deal,” and Anna testified that she interpreted Rebecca’s letters to mean that Rebecca wanted the will contract canceled, taken off the records, and “eliminated completely.”

Rebecca, present in court, did not testify. Defendants read the part of her deposition in which she indicated that her idea and purpose in having the release and quitclaim deed executed was to enable her to obtain a loan upon the farm, “nothing else.”

After her return to California Rebecca wrote the Woods that it was a good thing they signed the release and quitclaim deed; otherwise she could not have got the $10,-000 loan; that the lender’s manager told her he would not lend the money with that contract recorded “so when I told him it was canceled he then made me the loan.” After March 16, 1959 Rebecca made three testamentary dispositions which expressly provided that the Woods take no interest in the farm at her death. The option to renew the three-year lease was exercised by Edward in 1960. At trial Edward testified that he and his wife were ready, willing and able to perform their contracts with Rebecca, but that Rebecca did not want him to operate the farm the rest of her life; that Rebecca wanted him off the farm as soon as possible. Inconsistently, Anna testified that Rebecca indicated that she wanted them to continue under the lease, by telling Edward “what she wanted to plant next year.”

On this record defendants did not meet .the burden of proving a case of misrepresentation, fraud, or mutual mistake. Neither the testimony of the Woods, nor the 19 letters written by Rebecca, is persuasive that the Woods signed the release and quitclaim deed upon the basis of a fraudulent misrepresentation that their rights in the land were to survive the execution of these instruments which so positively and unequivocally bespeak abrogation and cancellation, or that the only effect of the instruments on the will contract would be to permit Rebecca to borrow $10,000 on the land. Nor in our judgment do the credible facts indicate mutual mistake. Although Rebecca’s letters in early February impliedly recognize the right of the Woods to the farm upon Rebecca’s death, the tenor of the letters toward the end of February changed as she failed to get a favorable response to her demands for immediate action, demands vigorously presented every day or two. Toward the last she berated the Woods, and shamed and derided them for professing to be Christians while at the same time taking advantage of an old lady. Toward the last she showed a disposition to cancel the contract “for sure and permanently * * * forever, not temporarily” and to exclude the Woods. Finally she plainly told them that she had had her will fixed so that anyone recording a contract against her farm, as she considered the Woods had done, would be “barred indefinitely” from claiming the farm or any of her estate, and told them that at her death nobody would get anything; that the rights of the Woods had been canceled by the act of recording the contract; that the Woods had been “mean” to her and that they would be the “looser” (sic).

Edward and Anna’s testimony that Rebecca said she still intended for them to get the farm, and that these instruments would not affect their rights under the will contract, is not accepted. It is rendered suspect for several reasons. On cross-examination Edward and Anna both conceded that according to their understanding and interpretation of Rebecca’s wishes and letters, the will contract was to be completely eliminated. Edward had “no doubt” that she “aimed to cancel the whole deal.” Edward’s letters plainly indicate that he too was contemplating cancellation “of all contracts including the farm contract.” No agreement was reached between Rebecca and the Woods in the course of the intensive exchange of letters. Rebecca considered it necessary to make a trip from California to Missouri to effect an agreement. Obviously the agreement Rebecca had in mind, as represented by the unconditional release and quitclaim deed which she had her attorney prepare and which she presented to the Woods on her return, contained no reservation of any rights in the Woods. Several days passed before these instruments of abrogation were executed by the Woods. In the meantime the Woods had ample opportunity to read, know and understand their contents and effect. They took them to their own lawyer and asked him what he thought of them, and had the benefit of the advice of independent counsel with respect to their meaning and effect. It is difficult to believe that under these circumstances the Woods could have seriously entertained the thought that the only effect of these instruments would be to permit Rebecca to obtain a $10,000 loan on the land. The conduct of the Woods in executing a new three-year farm lease appears to have been a tacit recognition that the slate had been wiped clean by the instruments in question; that the release and quitclaim deed terminated not only the will contract but also the existing farm lease, thereby stripping them of present as well as future interests and requiring a new lease if the Woods were to have the right to continue to farm the land.

Anna’s testimony that Rebecca “stood right up against the wall” in the attorney’s office, on March 16, 1959, and said “she still wanted us to have the place” and that the quitclaim “wouldn’t have nothing to do” with their getting the farm is uncorroborated, and considering the exasperated state of mind Rebecca was in by that time, and her changed attitude as expressed in her letters, we are not willing to accept it as a fact. We interpret Rebecca’s statement in the deposition that the release and quitclaim were to enable her to obtain a loan on the farm, “nothing else,” as a statement of her original motive in initiating the effort to have the contract “taken off the record,” at which time (in early February) she continued to recognize the Woods’ rights to inherit the farm after her death, if they would cooperate with her. But as we have indicated her attitude changed be-between February 3 and March 11, as a result of the failure of the Woods to promptly accede to her wishes, and by the time she had the papers prepared she was of a different mind, was hostile toward the Woods, and in our view was determined to procure an unconditional release.

Defendants’ contradictory, nebulous and incredible evidence does not constitute the clear and convincing proof required before a court of equity will set aside a deed or reform a contract on the ground of misrepresentation, fraud or mutual mistake.

Nor is the charge of duress sufficiently substantiated to make a case. We are not convinced that the letters, the threat, of Rebecca’s “rough and wild” statements were of such a nature as to prevent the Woods from exercising their free wills. Considering the age of Rebecca and that of the much younger Woods, the relation of the parties, the tone and tenor of the’ letters exchanged, the time spread between the presentation and the execution of the documents, the fact that the Woods had the benefit of the advice of their chosen counsel, the circumstances under which the papers were signed, and the fact that neither Edward nor Anna testified that the instruments were executed as a result of compulsion, threats or fear, we hold that the release and quitclaim deed were not procured by duress.

In our judgment the will contract was canceled; abrogated and rescinded by the release and quitclaim deed.

Edward and Anna seek the benefit of a presumption that Rebecca’s testimony would have been unfavorable to Rebecca since she did not take the stand and testify, but this rule is inapplicable where the testimony is unnecessary. The burden of proof on the issue of mistake was upon defendants, and they did not sustain that burden. No unfavorable presumption* arises because of the failure of Rebecca ⅛> testify until defendants made a prima facie case. Talley v. Richart, 353 Mo. 912, 185 S.W.2d 23, 27. “No duty rests upon the party charged to speak until the other party has introduced evidence which, unexplained, makes a case against him.” Bahl v. Miles, 222 Mo.App. 984, 6 S.W.2d 661, 664.

Defendants contend, however, that the interests of the heirs of the body of Edward and Anna under the will contract were not affected by the release and quitclaim deed, urging that these heirs were third party beneficiaries; that the contract did not reserve the right to rescind as to them and therefore their rights could not be terminated by a rescission by the parties signatory; that the contract had been executed by Edward and Anna up to the time of trial; and that identification of the “heirs of the body” or proof of knowledge or action on their part was not essential.

Assuming that the heirs of the body are third party beneficiaries under the contract and not incidental beneficiaries merely, and further assuming that the rule stated in Restatement, Contracts, § 142 is applicable to third party beneficiaries in the case of an unconditional promise for the benefit of a third party, we are nevertheless of the opinion that the interests of the heirs of the body were extinguished by the rescission of the contract by the contracting parties. The rule stated in said § 142 relates to unconditional promises and has no application here. This contract did not give the heirs of the body a vested interest or an indefeasible right to an interest in the farm, see Lehman v. Stout, 1961, 261 Minn. 384, 112 N.W.2d 640, nor was the promise of Rebecca in favor of the heirs of the body unconditional. On the contrary, Rebecca’s promise was conditional upon performance by the promisees. That condition was not fulfilled. The injustice of allowing a mere donee to enforce a promise where the substantial matter the parties had in mind was the performance of the promises and the promisor has not received what he bargained for, is pointed out in 2 Williston, Contracts, 3rd Ed., 1959, § 395. Rebecca’s promise to devise the farm was conditioned upon the continued performance by Edward and Anna during the lives of Rebecca and Hugh of their obligation to manage and operate the farm, make repairs, etc., under the contract. The contract specifically reserved to Rebecca the right to cancel if Edward ánd Anna failed to manage or repair as promised. At the time of the rescission the contract remained executory and only partially performed — it could not have been fully performed by the promisees Edward and Anna until the occurrence of the deaths of Rebecca and Hugh. When the parties rescinded the contract by the execution of the release and quitclaim deed they thereby released and canceled all rights and duties arising under the contract, including the duty of Edward and Anna to manage, repair, etc., under that contract. Thereafter Edward and Anna did not continue to manage, repair, etc. under the contract, but under a new lease. In Restatement of Contracts, § 140, the rule is laid down that if after the formation of a contract it “subsequently ceases to be binding * * * because of * * * the present or prospective failure of the promisee to perform a return promise which was the consideration for the promisor’s promise, the right of a donee beneficiary * * * under the contract is subject to the same limitation.” The rescission of the contract by mutual consent constituted a non-fulfillment of the condition and effectively terminated the rights of the heirs of the body. 4 Corbin on Contracts, § 816.

The release and quitclaim deed are not void for lack of consideration. The farm contract was executory in nature, and the undischarged obligations could be canceled by mutual agreement. The release is a bilateral contract. Consideration is to be found in the mutual release by each of the parties of all rights arising out of the contract. Each side gave up valuable rights and was exonerated from the performance of definite legal obligations. The quitclaim deed, executed at the same time and as part and parcel of the agreement to extinguish the will contract, is supported by the same consideration which supports the release (although as between the parties consideration is not necessary to the validity of a deed, Binnion v. Clark, 359 Mo. 202, 221 S.W.2d 214, 217).

Defendants’ claim for breach of contract, necessarily based upon the continued existence of the will contract, falls by reason of the cancellation and rescission effected by the instruments executed March 16, 1959. In the release each side agreed that neither was indebted to the other for any cause whatsoever arising out of the farm contract and agreed to release, indemnify and save the other harmless from all further liability under the contract. This eliminated the foundation of any claim for breach of contract.

The next question is whether Rebecca’s cause is barred by the clean hands doctrine. Appellants maintain that Rebecca does not have clean hands because she (1) induced the Woods to move onto her farm and sign a lease upon the false representation that there existed a will in favor of them and their bodily heirs when in fact there was none and specifically disinherited Edward and Anna and their bodily heirs by a codicil to her will; (2) induced the Woods to sign the release and quitclaim deed by representing that the sole purpose of these instruments was to enable her to borrow money and that they would not affect their rights and now claims their rights were extinguished, and was thus “guilty of fraud and deceit in the beginning”; (3) engaged in a continuous pattern of fraud and deceit in getting tenants to work her land “as future owners” on the promise that they would get the land after her death; (4) failed to take the stand and testify, notwithstanding many of the facts were within her personal knowledge.

As to (1) Rebecca had until the time of her death to make good on her obligation to malee a will in accordance with the terms of the contract; and the express disinheritance complained of occurred some time after the execution of the release and quitclaim deed, at a time when she would have been fully justified in considering that she had no further obligation to the Woods and their bodily heirs owed them no duty to leave the farm to them upon her death, and had the right to specifically disinherit them. Objection (2) is the crux of the case, and does not properly relate to the question of clean hands. (3) involves transactions between Rebecca and persons not parties to this action, is too remote in time to affect the case, and is not supported by proof that in each instance Rebecca’s promises were not made in good faith, or that she had not been released from her promises. (4) is no indication of unclean hands. It could under conceivable circumstance raise a presumption that Rebecca’s testimony would have been unfavorable, but not in this case for the reason heretofore given. Defendants had the right to call Rebecca to the stand as an adverse witness, § 491.030, R'SMo 1959, V.A.M.S., but they did not avail themselves of this right. Rebecca had testified by way of deposition, and defendants read into the record parts of her testimony, thereby placing Rebecca’s statements and testimony before the court. Rebecca did not refuse to testify or to answer any particular questions put to her, and as pointed out in her brief, defendants do not show what matters were peculiarly within Rebecca’s knowledge.

The judgment taxing all costs against defendants did not constitute an abuse of discretion, as claimed. Plaintiff prevailed on the count of her petition on which the case was tried, and on defendants’ counterclaim. The only action of the court favorable to defendants’ claims was the finding that the Woods were entitled to stay on the farm for another sixteen months under the renewal provision of the March 1, 1960 farm lease. This point was not contested, except in the pleading stage. A court of equity has a wide discretion in the assessment of costs, Schwartz v. Shelby Construction Co., Mo.Sup., 338 S.W.2d 781, 795, Sup.Ct. Rules 77.08, 77.09, V.A.M.R., and we find no abuse of discretion here.

It is urged that the court erred in failing to have any issues tried by jury. This point is ruled against defendants because of the vagueness of the charge, and because this case became and was a suit in equity, in which case the court was not obligated to utilize the services of a jury.

Finally, the record does not bear out defendants’ contention that the court erred in not admitting a number of defendants’ exhibits.

Respondent’s motion to dismiss the appeal for failure to comply with the rules of this Court is overruled.

Judgment affirmed.

.COIL, C, concurs.

PER CURIAM.

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

All of the Judges concur.

      . “Unless the power to do so is reserved, the duty of the promisor to the donee beneficiary cannot he released by the promisee or affected by any agreement between the promisee and the promisor * *